47:0322(24)CA - - HHS, SSA, Region I, Boston, MA and AFGE, Local 1164 - - 1993 FLRAdec CA - - v47 p322
[ v47 p322 ]
The decision of the Authority follows:
47 FLRA No. 24
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
April 2, 1993
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 General Counsel to the attached decision of the Administrative Law Judge.(1)
The complaint alleged that the Respondent (SSA) violated the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain with the Union over the impact and implementation of the contemplated relocation of SSA's Hyannis, Massachusetts Branch Office. The Judge found that the Respondent did not violate the Statute because, at the time of the Union's bargaining request, SSA had not made a final decision to relocate the Hyannis office and, therefore, no duty to bargain had yet arisen.
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. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommendation that the complaint be dismissed.
In February 1990, the General Services Administration (GSA), anticipating the expiration of the lease for the Hyannis office, required SSA to submit a Request for Space (SF-81), a GSA form on which an agency lists its space requirements in terms of square footage and special needs. In July 1990, GSA began a market survey and competitive bidding process to determine whether to relocate the Hyannis office. Between July 1990 and February 1991, several possible sites were identified by GSA.
In February 1991, SSA indicated to the Union "that the chances were 'fair to good' or 'fairly good' that the [Hyannis] office would be moving to . . . Barnstable Road." Judge's Decision at 2. On July 11, 1991, SSA indicated to the bargaining unit employees "that 'they thought they would move' by September." Id. On July 12, 1991, the Union wrote SSA and requested "to consult and bargain on the [i]mpact and [i]mplementation of the relocation" of the Hyannis office. General Counsel's Exhibit 3. No specific proposals were submitted. The Union also requested that SSA furnish copies of any proposed floor plans and the documents that SSA had submitted to GSA regarding relocation.
SSA informed the Union on July 23, 1991, that no final decision as to relocation had been made, that SSA would advise the Union when a decision was made, and that the information requested would be furnished.(2) The Union filed an unfair labor practice charge on July 25, 1991. The complaint based on that charge alleged that SSA violated the Statute when, on July 25, 1991, SSA refused to bargain over SSA's contemplated relocation of the Hyannis office.(3) The General Counsel argued before the Judge and in its exceptions that "the statutory duty to bargain arises when an agency contemplates a change," and that "[i]n the case of a relocation, there is a contemplated change when an agency submits a Request for Space (SF[-]81) to GSA." General Counsel's Post Hearing Brief to the Judge at 7. See also Exceptions at 3.
The Judge rejected the General Counsel's argument. The Judge stated that once an agency makes a firm decision to relocate, the agency has the obligation to bargain over the impact and implementation of the relocation, and that the obligation must be fulfilled prior to implementation of the change. The Judge acknowledged that in some circumstances "a contemplated change may be so close to implementation that the agency's silence, or its refusal of a request to bargain, may be inconsistent with the duty to negotiate in good faith . . . ." Judge's Decision at 6. However, the Judge concluded, and we agree, that in this case "it has not been established that a final decision had been made" at the time of the Union's request to bargain or that "agreement had been reached on all matters essential to make a final commitment to move." Id. at 7. Accordingly, we find that SSA was not required to bargain at the time of the Union's request to bargain.(4)
The complaint is dismissed.
(If blank, the decision does not have footnotes.)
1. On October 30, 1992, the Respondent filed an opposition to the General Counsel's exceptions. On November 6, 1992, the Authority issued an order directing the Respondent, among other things, to show that its opposition was served on the General Counsel's representative of record, and stating that failure to comply with the Authority's order may result in the Authority not considering the opposition. The Respondent did not respond to the Authority's order and, therefore, the Respondent's opposition to the General Counsel's exceptions has not been considered.
2. On July 25, 1991, SSA amended its July 23 response as to the information portion of the Union's request. The record shows that SSA furnished the Union with the requested information on July 24, 1991. There is no allegation in this case that SSA unlawfully failed or refused to furnish the Union with any requested information.
3. The record shows that in early August 1991 the Barnstable Road site was withdrawn from consideration and the selection process was reopened for competitive bidding. At the time of the hearing in this matter, no final decision to relocate the Hyannis office had been made.
4. The complaint alleges only that the Union requested, and the Respondent refused, to bargain over the impact and