37:0025(2)CA

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37:0025(2)CA
The decision of the Authority follows:


37 FLRA No. 2

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF LABOR

WASHINGTON, D.C.

AND

U.S. DEPARTMENT OF LABOR

EMPLOYMENT STANDARDS ADMINISTRATION

BOSTON, MASSACHUSETTS

(Respondent)

1-CA-80008

and

U.S. DEPARTMENT OF LABOR

EMPLOYMENT STANDARDS ADMINISTRATION

WASHINGTON, D.C.

AND

U.S. DEPARTMENT OF LABOR

BUREAU OF LABOR STATISTICS

BOSTON, MASSACHUSETTS

(Respondent)

1-CA-80015

and

U.S. DEPARTMENT OF LABOR

WASHINGTON, D.C.

AND

U.S. DEPARTMENT OF LABOR

OFFICE OF THE ASSISTANT SECRETARY FOR

ADMINISTRATION AND MANAGEMENT

BOSTON, MASSACHUSETTS

(Respondent)

1-CA-80065

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO

NATIONAL COUNCIL OF FIELD LABOR LOCALS

LOCAL 948

(Charging Party)

DECISION AND ORDER

September 7, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

These consolidated unfair labor practice cases are before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the U.S. Department of Labor (DOL), Washington, D.C. on behalf of the Respondents set forth in the above-entitled cases.(*) The General Counsel filed an opposition to the Respondent's exceptions and a motion requesting that the exceptions be dismissed as improperly filed. The Respondent filed an opposition to the General Counsel's motion.

Prior to 1987, the Respondent had provided hot/cold water coolers at the Boston, Massachusetts Offices of DOL, Employment Standards Administration (ESA), Bureau of Labor Statistics (BLS), and the Office of the Assistant Secretary for Administration and Management (OASAM). The complaint alleged that the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by removing, or by ceasing to provide, the water coolers because the Charging Party (the Union or AFGE, Local 948) filed a grievance over management's failure to provide a water cooler at the Boston Office of the DOL, Wage and Hour (W&H) Division. The complaint also alleged that the Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally changing conditions of employment by ceasing to provide hot/cold water coolers at the ESA, BLS, and OASAM offices without first providing the Union with notice of the decision and an opportunity to bargain over the decision and its impact and implementation. The Judge found that the Respondent had engaged in the unfair labor practices alleged in the complaint, and recommended that the Respondent be ordered to take appropriate remedial action.

Pursuant to section 2423.29 of our 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. We affirm the rulings.

We agree with the Judge's conclusion that the Respondent violated section 7116(a)(1) and (5) of the Statute. However, for the reasons set forth below, we conclude, contrary to the Judge, that the Respondent did not violate section 7116(a)(1) and (2) of the Statute. Accordingly, we will dismiss this portion of the complaint.

II. Preliminary Matter

Following the Respondent's timely filing, on June 28, 1989, of exceptions and a supporting brief with the Authority pursuant to section 2423.26(c) of our Regulations, the General Counsel filed a motion with the Authority, requesting that the exceptions be dismissed as improperly filed because the General Counsel had been served with incorrect copies of the Respondent's exceptions and brief, to which it had already filed an opposition. On September 27, 1989, the Authority deferred ruling on the motion and granted the General Counsel an extension of time in which to file an opposition to the exceptions which had been filed with the Authority. A timely opposition to the exceptions was filed by the General Counsel.

A. Positions of the Parties

The General Counsel contends that the Respondent failed to comply with section 2423.26(c) of the Authority's Regulations. The General Counsel asserts that the Respondent's failure to serve it with correct copies of the Respondent's exceptions and brief caused the General Counsel to "expend considerable time and effort" responding to the incorrect exceptions. Motion at 4. The General Counsel argues that adherence to section 2423.26(c) of the Authority's Regulations, which requires copies of exceptions to be served on all parties, "compels the conclusion that the exceptions filed by the Respondent on June 28 should not be accepted." Id. The General Counsel argues that requiring it to file a new opposition, responding to the original exceptions filed with the Authority, "would only lend sanction to inexcusable delay and render meaningless the provisions of section 2423.26(c) of the Regulations." Id.

The Respondent filed an opposition to the General Counsel's motion. The Respondent states that it served copies of its exceptions on all parties by mail on June 28, 1989. The Respondent states that for unknown reasons counsel for the General Counsel did not receive a copy of the exceptions. In view of this, the Respondent mailed another copy to the General Counsel on July 10, 1989; however, "through error" a draft version of the exceptions was mailed rather than the final exceptions that had been filed with the Authority. Respondent's Opposition to General Counsel's Motion at 2. The Respondent states that as soon as its counsel became aware of the error, she alerted counsel for the General Counsel and cured the defect by mailing a correct copy of the filed document to the General Counsel. Id. at 2-3. The Respondent argues that the motion should be denied because, although service may have been defective, the defect was cured in accordance with Authority practice and the General Counsel was not prejudiced by the events. The Respondent also states that it did not oppose granting the General Counsel time to file additional opposition. Id. at 3.

B. Ruling on the Motion

The record shows that the Respondent filed timely exceptions and a supporting brief with the Authority as required by section 2423.26(c) of our Regulations. Although the Respondent at first inadvertently served the wrong documents on the General Counsel, the record shows that the Respondent, upon discovering the error, immediately corrected it by mailing to the General Counsel a copy of the exceptions and supporting brief that had been timely filed with the Authority. The record further demonstrates that the General Counsel was granted reasonable time to file, and did file, an opposition to these exceptions. Under these circumstances, and in the absence of a showing that the General Counsel was prejudiced by the error, we conclude that the Respondent's exceptions are properly before us. The General Counsel's motion to dismiss the exceptions is denied.

III. Facts

AFGE, Local 948 is authorized as the agent of the American Federation of Government Employees, AFL-CIO, National Council of Field Labor Locals to represent employees in the DOL Boston offices of ESA, BLS, and OASAM. ESA and BLS are located on the 16th floor, and OASAM on the 18th floor, of the John F. Kennedy Federal Building (JFK Building).

In 1985 or early 1986, the then Regional Administrator for OASAM approved the expenditure of funds to lease a water cooler for OASAM employees because the water supply on the 18th floor of the JFK Building was considered inadequate to meet the minimum needs of the employees. Later in 1986, leases of water coolers were authorized by the Regional Administrator of ESA and the Regional Commissioner of BLS for their respective employees on the 16th floor because of functional problems with the water supply and/or because the water supply was not potable. In November 1986, a new administrator assumed the position of Regional Administrator for OASAM.

In March 1987, the Union requested a water cooler for the employees of ESA's Boston W&H office located in the Park Square Building. ESA's Regional Administrator denied the request. The Union then leased a water cooler for the W&H employees at the Park Square Building and filed a grievance alleging that ESA's failure to provide water violated the parties' negotiated agreement.

In May 1987, ESA's Regional Administrator, without notice to the Union, advised its employees that ESA would no longer provide funds for the water cooler on the 16th floor of the JFK Building and that if the employees wanted to continue the service, they would have to assume the expense.

The ESA Regional Administrator also denied, at the Step 2 level of the contract, the Union's grievance over the water cooler request for the Park Square Building.

In October 1987, BLS's Regional Commissioner, without notice to the Union, removed the water coolers for BLS employees on the 16th floor of the JFK Building. The Regional Commissioner denied the Union's request to restore the coolers.

IV. Administrative Law Judge's Decision

The Judge applied the standard for determining what constitutes a "condition of employment" set forth in Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986) (Antilles), and concluded that the presence and availability of the hot/cold water coolers in the employees' workplace is a condition of employment. Judge's Decision at 9. The Judge also concluded that the General Counsel had established that the providing of water coolers by and at the expense of DOL in this case constituted a past practice. Id. at 10.

The Respondent argued before the Judge that it could not continue lawfully to expend appropriated funds for the coolers once the water fountains in the JFK Building had been repaired. The Respondent claimed that paying for the coolers under such circumstances would not qualify as a "necessary expense" under decisions of the Comptroller General.

The Judge rejected the Respondent's contention. The Judge found that the Comptroller General decisions, all of which rely on 5 Comp. Gen. 53 (1925), did not mandate the removal of the water coolers. The Judge noted that these decisions state that an agency may not provide such a facility or service "without sufficient evidence as to the necessity therefor from the Government's standpoint as distinguished from the needs or preferences of the employees[.]" Judge's Decision at 11. The Judge noted that the Respondent recognizes that it can, and does, pay for the availability of drinking water for its employees as evidenced by the drinking water expense in its rent to GSA and to the city of Boston. In view of this, the Judge concluded that the Respondent had already determined that providing drinking water was necessary from the Government's standpoint.

The Judge then stated that the issue was whether the water fountains in the hallways, already paid for by DOL, supplied sufficient and adequate water to meet the Government's needs. Based on the evidence, the Judge concluded that it was appropriate for DOL, ESA, BLS, and OASAM to negotiate with the Union concerning the adequacy and safety of the existing water supply and the need for the additional water coolers "from the Government's standpoint."

Id. at 11. The Judge noted that this was especially true when some employees questioned the purity and potability of the water provided by the water fountains in the halls and the ESA's Regional Administrator questioned the adequacy of the supply at the time of the removal of the water coolers.

The Judge concluded that DOL, OASAM, BLS, and ESA violated section 7116(a)(1) and (5) of the Statute by failing to provide the Union with advance notice of the decisions to remove and/or stop paying for the water coolers and by failing to meet their obligation to bargain with the Union concerning the decisions. The Judge also noted that had the Respondent's obligation been limited to impact and implementation bargaining, he would have found that the changes were more than de minimis.

The Judge also found, based on "an analysis of all the evidence and circumstances present," that the Respondent's decisions to remove the water coolers, or to make the employees pay for them, were made in retaliation for the Union's filing of a grievance concerning the failure to provide a water cooler for the employees at the Park Square Building. Id. at 13. The Judge concluded, therefore, that the Respondent violated section 7116(a)(1) and (2) of the Statute.

The Judge recommended a status quo ante remedy. Among other things, the recommended order directed the Respondent to return to the practice of providing water coolers at its offices in the JFK Building and to reimburse the Union and any bargaining unit employees for the cost of having provided such water coolers after the Respondent ceased to provide them.

V. Positions of the Parties

A. Respondent's Exceptions

The Respondent contends that the Judge erroneously concluded that the availability of bottled water constitutes a condition of employment. The Respondent argues that "[w]hile it may be the case that the existence of potable water at the work site constitutes a condition of employment," such water was provided at the time periods relevant to this case and, therefore, it was unnecessary to provide bottled water. Respondent's Brief In Support of Exceptions (Respondent's Brief) at 9. The Respondent contends that the bottled water was a "luxury" and a "convenience" to employees rather than a necessity and, therefore, it did not constitute a condition of employment. Id.

The Respondent further contends that its practice of using Government funds to provide bottled water after potable water was available was illegal and, therefore outside the duty to bargain. Relying on 31 U.S.C. § 628 and decisions of the Comptroller General, including 6 Comp. Gen. 619 (1927), and 5 Comp. Gen. 53 (1925), the Respondent contends that the purchase of bottled water did not meet the "necessary expense" test for spending appropriated funds under these decisions. According to the Respondent, Comptroller General decisions flowing from 5 Comp. Gen. 53 "stand for the proposition that the Government is only required to provide potable water and in the absence of an emergency situation is prohibited from spending additional funds to provide employees with bottled water, simply because they prefer it over the water from the bubblers." Respondent's Brief at 12.

The Respondent contends that because the water from the bubblers was potable, the Regional Administrators for OASAM and ESA and the Regional Commissioner for BLS concluded that the continued appropriation of funds for bottled water was illegal, leaving them no choice but to terminate payment for bottled water. Id. at 12. The Respondent contends, therefore, that it had no duty to bargain over its decision to discontinue this practice. Additionally, the Respondent contends that assuming it had a duty to bargain over the impact and implementation of its decision, it would not have violated the Statute because the changes were de minimis.

Finally, the Respondent argues that the evidence does not show that its actions concerning the removal of the water coolers constituted retaliation for the Union's filing of a grievance. The Respondent contends that it was the Union's letter submitting items for the agenda of the labor-management meeting that alerted the OASAM Regional Administrator to the fact that DOL paid for the coolers. According to the Respondent, this event, rather than the Union's filing of a grievance, prompted the administrator to inquire into the legality of the coolers. Further, the Respondent contends that it was through management's intervention that the grievance was settled and the Union reimbursed. Id. at 15-16.

The Respondent contends that the evidence supports its position that the General Counsel failed to establish a prima facie case that the coolers were removed in retaliation for the grievance concerning the Park Square Building. The Respondent further asserts that, even assuming that the General Counsel established a prima facie case, "the Department would have reached the same decision in the absence of protected activity since it is required to avoid unlawful expenditures." Id. at 17 (footnote omitted).

B. The General Counsel's Opposition

The General Counsel contends that the Judge analyzed the evidence in light of the criteria set forth in Antilles and correctly determined that the water coolers constituted a condition of employment. The General Counsel states that the "evidence recounted in the ALJ's findings of fact clearly demonstrates the 'direct connection'" between the water coolers and the work situation of employees as required by Antilles. General Counsel's Opposition To Exceptions (Opposition) at 4.

The General Counsel argues that the Respondent's reliance on the Comptroller General decisions to support its action in removing the water coolers does not justify its unilateral action. The General Counsel states that the Comptroller General did not decide that the water in the JFK Building's bubblers was potable, or that the water coolers were no longer a necessary expense; rather, management made those decisions. The General Counsel states that under the Comptroller General's decisions an agency retains the discretion to decide how to determine potability and what is a necessary expense under the circumstances. Citing National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA 6 (1986) (U.S. Customs Service), enforced sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, 836 F.2d 1381 (D.C. Cir. 1988), the General Counsel asserts that the Authority has consistently held that, insofar as an agency has discretion regarding a matter affecting conditions of employment, it is obligated to exercise that discretion through negotiation unless precluded by regulatory or statutory provision. The General Counsel contends that "[n]othing in the Comptroller General's decisions cited by the Respondent precludes negotiation over the continued funding of water coolers in the ESA, BLS, and OASAM offices." Opposition at 5. Therefore, according to the General Counsel, the Judge was correct in concluding that the Respondent was obligated to negotiate with the Union concerning the water coolers.

Finally, the General Counsel asserts that the Respondent is "mistaken" in claiming that the Judge disregarded the evidence presented at the hearing on the issue of whether the Respondent retaliated against the Union because it had filed a grievance. Id. at 6. The General Counsel states that this is not a "dual motive" case, but rather is one of "pure and simple pretext." Id. According to the General Counsel, the circumstances enumerated by the Judge to support his determination are "compelling evidence of the Respondent's unlawful intent and . . . support the [Judge's] conclusion that the Respondent's '. . . inquiries and the excuse that the Comptroller General does not permit such expenditures were in the nature of rationalizations, trying to justify the decision.'" Id.

VI. Analysis and Conclusions

A. The Dispute Concerns a Condition of Employment

The Respondent contends that the Judge erred by concluding that the availability of water coolers is a condition of employment. We find the Respondent's argument unpersuasive. The Judge applied the standard for determining whether a matter constitutes a condition of employment as set forth in Antilles and determined that the availability of water coolers is a condition of employment. We agree with the Judge's determination.

We note, particularly, that management had had concerns about the adequacy of the water facilities available to employees and the potability of the water supplied for some time. As the facts set forth above show, the former Regional Administrator for OASAM first decided to lease water coolers because the water supply was inadequate to meet the minimum needs of the employees. ESA and BLS decided to lease water coolers because of functional problems with the water supply and/or because the water supply was not potable. When management unilaterally decided that the adequacy and potability of the water supply were once again at acceptable levels, management decided to stop leasing water coolers.

In these circumstances, we find that the availability of water from the coolers was not a "luxury" as the Respondent suggests. The availability of potable water directly affects the working conditions of the unit employees and is, therefore, a condition of employment. See, for example, American Federation of Government Employees, Local 2761 v. FLRA, 866 F.2d 1443 (D.C. Cir. 1989) (employees' access to post exchange privileges found to be a condition of employment; also, agency's annual picnic used by management to present employee awards and otherwise foster a productive work relationship found to directly affect employees' work and, therefore, to be a condition of employment); Department of the Treasury, Internal Revenue Service (Washington, D.C.); and Internal Revenue Service Hartford District (Hartford, Connecticut), 27 FLRA 322 (1987) (lunch room conveniences, including a microwave oven, found to be conditions of employment).

B. Requiring the Respondent to Bargain Is Not Barred by Federal Statute or Decisions of the Comptroller General

The Respondent argues that, in the absence of legislative authority that provides for the expenditure of funds for bottled water/water coolers when water from the water fountains is potable, it cannot spend funds for that purpose. Relying on 31 U.S.C. § 628, superseded by 31 U.S.C. § 1301(a), the Respondent argues that funds may be used only for the purpose for which they are appropriated, and that an agency's discretion in determining how to carry out the objects of the appropriation is limited by the "necessary expense" rule set out in 6 Comp. Gen. 619, 621 (1927). Respondent's Brief at 9-10. However, we find nothing which suggests that the Respondent is without legal authority pursuant to the Comptroller General decisions to provide the water coolers in the circumstances of this case.

In 6 Comp. Gen. 619, the Comptroller General set forth a "necessary expense" rule to be applied when determining whether an expense is necessary for the expenditure of appropriated funds. Id. at 621. The Comptroller General in interpreting this rule has stated that an agency has "reasonable discretion" in determining how to carry out the object of the appropriation under the necessary expense concept. See Principles of Federal Appropriations Law, 3-12 (1982 Edition). Further, in Comptroller General decisions cited by the Respondent in its exceptions (for example, 25 Comp Gen. 920 (1946), 24 Comp. Gen. 56 (1944), and 17 Comp. Gen. 698 (1938)), the Comptroller General, in considering the purchase of drinking water, relied on 5 Comp. Gen. 53 (1925). In that case, the Comptroller stated:

As there is no duty or obligation upon the United States to furnish drinking water to employees not entitled to subsistence at Government expense, regardless of whether a suitable supply is or is not available without charge, the purchase of drinking water at Government expense for use in offices, without sufficient evidence as to the necessity therefor from the Government's standpoint as distinguished from the needs or preferences of the employees, is not authorized in the absence of a specific provision in the appropriation involved providing for such purchase.

Id. at 53.

Based upon our analysis of the Comptroller General's decisions, it is our view that the Judge was correct in finding that these decisions do not mandate that the Respondent discontinue providing the water coolers without providing the Union with notice and an opportunity to bargain over its decision to do so. Rather, these decisions demonstrate that: (1) the funding of water/water coolers may be provided if there is sufficient evidence as to the necessity for water coolers from the Government's standpoint; and (2) the necessity for funding must be determined on a case-by-case basis. Further, agencies have administrative discretion to determine the necessity for the expenditure from the Government's standpoint. Nothing in the Comptroller General's decisions indicates that an agency must make its determination unilaterally or without the benefit of negotiations with the exclusive representative of the employees affected by the change.

C. The Respondent Violated Section 7116(a)(1) and (5) of the Statute

"[I]nsofar as an agency has discretion regarding a matter affecting conditions of employment it is obligated under the Statute to exercise that discretion through negotiation unless precluded by regulatory or statutory provisions." U.S. Customs Service, 21 FLRA at 10. In this case, neither Federal statute nor decisions of the Comptroller General prohibit the Respondent from exercising through negotiation the discretion which it possesses to determine whether there is sufficient evidence of the necessity to purchase or lease water coolers from the Government's standpoint. See, for example, American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, 29 FLRA 380, 381-85 (1987) (Proposal 1) (proposal that agency subsidize cafeteria prices held negotiable where Comptroller General decisions supported a conclusion that the agency had discretion to take the actions contemplated by the proposal), affirmed as to other matters sub nom. Office of Personnel Management v. FLRA, 864 F.2d 165 (D.C. Cir. 1988). Thus, we find, in agreement with the Judge, that it is "appropriate and proper for DOL and ESA, BLS and OASAM to negotiate with [the Union] concerning the adequacy and safety of the existing water supply and the need for the additional water coolers, 'from the Government's standpoint.'" Judge's Decision at 11. Therefore, in agreement with the Judge, we conclude that DOL, OASAM, BLS, and ESA violated section 7116(1) and (5) of the Statute when they decided to remove and/or stop paying for the water coolers without giving the Union notice and an opportunity to bargain over the decision to do so.

D. The Respondent Did Not Violate Section 7116(a)(1) and (2) of the Statute

The Judge found that the Respondent violated section 7116(a)(1) and (2) of the Statute by deciding to remove the water coolers or to cease paying for them in retaliation for the Union's filing of a grievance over the Respondent's refusal to provide a water cooler for employees at the Park Square Building. The Respondent contends that the Judge erroneously concluded that the General Counsel had demonstrated that it had retaliated against the Union because of protected activity. For the reasons that follow, we disagree with the Judge's conclusion.

In cases involving allegations that an agency has violated section 7116(a)(2) of the Statute, the General Counsel bears the burden of proving the allegations of the complaint by a preponderance of the evidence. See, for example, Letterkenny Army Depot, 35 FLRA 113 (1990). In the instant case, the issue is whether the General Counsel has proved by a preponderance of the evidence that the Respondent's decisions to remove the water coolers from the 16th and 18th floors of the JFK Building were in retaliation for the Union's filing of a grievance over the Respondent's refusal to provide a water cooler for employees at the Park Square Building.

The Judge found that the Respondent's decisions to remove the water coolers or to make the employees pay for the coolers in the JFK Building, especially the decision of the Regional Administrator for ESA, were so close in time to the filing and disposition of the grievance as to support a finding of a violation. Although closeness in time between an agency's employment decision and protected activity engaged in by a union may support an inference of illegal anti-union motivation, it is not conclusive proof of a violation. See Department of the Air Force, 410th Combat Support Group, K.I. Sawyer Air Force Base, Michigan, 33 FLRA 352, 372 (1988). Compare United States Customs Service, Region IV, Miami District, Miami, Florida, 36 FLRA 489, 495-99 (1990) (unfair labor practice found where timing of respondent's action, in conjunction with other facts and circumstances, established a violation). We find that in this case the evidence does not demonstrate that the Respondent's action was in retaliation for the Union's filing of a grievance.

The evidence shows that the Union raised the question of water coolers for the Park Square Building in the agenda for the March 17, 1987 labor-management meeting. At the March 17 meeting, management advised the Union that the General Service Administration (GSA) was responsible for providing water at this building and volunteered to write a letter to GSA concerning the matter, which it did. See G.C. Exhibit 4, Letter dated March 17, 1987 and G.C. Exhibit 9, Attachment dated April 28, 1987. Subsequently, GSA provided a water cooler for the Park Square Building. The grievance was resolved in September of 1987 when GSA reimbursed the Union for the money it had spent providing water at the Park Square Building. Judge's Decision at 7.

The evidence further shows that the Union's raising of the water cooler issue in the March agenda for the labor-management meeting prompted the Regional Administrator of OASAM to look into the funding of water coolers at the JFK Building. Although certain managers knew that DOL had been paying for the coolers, the Regional Administrator of OASAM, who had assumed this position in November 1986 and whose office is responsible for the fiscal and procurement policies of the Boston Region, did not learn that offices in the JFK Building, including her own, were paying for the coolers until the Union raised the issue in March 1987. See Transcript at 150-152 and 176-178.

We note, in addition, that the Respondent had an interest in seeking to determine if the expenditure of appropriated funds to provide water coolers was lawful. In April 1987, the Regional Administrator considered a sampling test of the water in the JFK Building and, based on this test and advice from other individuals, determined that the water in the JFK Building was potable and that the coolers were no longer needed because the problem requiring the coolers no longer existed. She then sought advice to determine under what conditions continued payment for the coolers would be justified and was advised by her Financial Management Advisor, who had obtained advice from DOL's Comptroller's Office in Washington, D.C., that unless there was a justifiable reason to continue payment for the coolers, it would be an inappropriate expense. See Transcript at 152-156.

The Regional Administrator considered the matter further to determine if it was appropriate to continue to expend funds to provide the coolers. For example, the Regional Administrator discussed the matter with the Regional Executive Committee (REC), which consists of all the regional administrators for the Boston Region, and consulted with other regional administrators across the country before advising the REC that the expenditure of appropriated funds to provide water coolers was not appropriate in the JFK Building absent certain conditions. See Transcript at 158-160.

As to the removal of the water coolers, OASAM and BLS did not require removal of the water coolers from their offices until October 1987, after the leases had expired and they had received information given at the REC meeting. Although the Regional Administrator of ESA decided to remove the water cooler before the lease expired, he did so after being advised that, based on information received, payment for the water coolers could no longer be justified because there was adequate drinking water in the building.

With regard to the allegation that the Respondent removed the water coolers in the JFK Building because the Union filed a grievance concerning the Park Square Building, we note that (1) the Respondent intervened with GSA to resolve the grievance; and (2) the grievance was resolved after GSA provided a water cooler in the Park Square Building and reimbursed the Union for monies it had expended providing a cooler in that building. This conduct by the Respondent does not support the conclusion that the Respondent retaliated against the Union at another location but rather shows that the Respondent actively sought to resolve the grievance concerning the Park Square Building, and that the Respondent's decisions to remove the water coolers from the JFK Building were based on the belief that appropriated funds could no longer be used to provide coolers.

We find, therefore, based on our review of the evidence in this case, that the preponderance of the evidence does not establish that the Respondent's action in removing the water coolers from the JFK Building was done in retaliation for the Union's having filed the grievance concerning the Park Square Building. Rather, Respondent's inquiry into the water cooler issue and its removal or discontinuance of payment for the coolers was based on its interest in ensuring that appropriated funds were being spent properly. Accordingly, we find that the Respondent's action in removing the water coolers from the JFK Building did not in and of itself constitute a violation of section 7116(a)(1) and (2) of the Statute. Therefore, this portion of the complaint will be dismissed.

VII. Remedy

We conclude that the remedy recommended by the Judge--that is, a status quo ante remedy--is appropriate in this case. Where, as here, management has changed a negotiable condition of employment without fulfilling its obligation to bargain on that change, the Authority will grant a status quo ante remedy in the absence of special circumstances. A return to the status quo ante effectuates the purposes and policies of the Statute and ensures that the obligation to bargain is not rendered meaningless. The Respondent has not established or even asserted any special circumstances to show that a status quo ante remedy is unwarranted in this case. See United States Army Adjutant General, Publications Center, St. Louis, Missouri, 35 FLRA 631, 634-35 (1990); and Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 35 FLRA 153, 155-56 (1990).

VIII. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of Labor (Washington, D.C.) and U.S. Department of Labor, Employment Standards Administration (Boston, Massachusetts); U.S. Department of Labor, Employment Standards Administration (Washington, D.C.) and U.S. Department of Labor, Bureau of Labor Statistics (Boston, Massachusetts); and U.S. Department of Labor (Washington, D.C.) and U.S. Department of Labor, Office of the Assistant Secretary for Administration and Management (Boston, Massachusetts), shall:

1. Cease and desist from:

(a) Unilaterally ceasing to provide or removing water coolers or making other changes in conditions of employment without first notifying the American Federation of Government Employees, AFL-CIO, National Council of Field Labor Locals, Local 948, the agent of the exclusive representative of their employees, about any such proposed change and providing it with an opportunity to negotiate concerning such change.

(b) In any like or related manner, interfering with, restraining, or coercing their employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Replace and provide water coolers in their offices in the John F. Kennedy Federal Building.

(b) Notify and, upon request, negotiate with the American Federation of Government Employees, AFL-CIO, National Council of Field Labor Locals, Local 948, the agent of the exclusive representative of their employees, concerning any change in the availability of water coolers.

(c) Reimburse and make whole the American Federation of Government Employees, AFL-CIO, National Council of Field Labor Locals, Local 948, the agent of the exclusive representative of their employees, or any unit employee for monies spent to pay for and provide water coolers in the John F. Kennedy Federal Building.

(d) Post at their facilities in the John F. Kennedy Federal Building, Boston, Massachusetts, 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 the respective Regional Administrator or Commissioner of the Department of Labor's Boston, Massachusetts offices of the Bureau of Labor Statistics, Employment Standards Administration, and the Office of the Assistant Secretary for Administration and Management, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to their respective 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.

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 unilaterally cease to provide or remove water coolers or make other changes in conditions of employment without first notifying the American Federation of Government Employees, AFL-CIO, National Council of Field Labor Locals, Local 948, the agent of the exclusive representative of our employees, about any such proposed change and providing it with an opportunity to negotiate concerning such change.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Federal Service-Labor Management Relations Statute.

WE WILL replace and provide water coolers in our offices in the John F. Kennedy Federal Building.

WE WILL notify and, upon request, negotiate with the American Federation of Government Employees, AFL-CIO, National Council of Field Labor Locals, Local 948, the agent of the exclusive representative of our employees, concerning any change in the availability of water coolers.

WE WILL reimburse and make whole the American Federation of Government Employees, AFL-CIO, National Council of Field Labor Locals, Local 948, the agent of the exclusive representative of our employees, or any unit employees for monies spent to pay for and provide water coolers in the John F. Kennedy Federal Building.

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(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, MA 02222-1046, and whose telephone number