DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT SAN FRANCISCO REGIONAL OFFICE REGION IX SAN FRANCISCO, CALIFORNIA and LOCAL 1450, NATIONAL FEDERATION OF FEDERAL EMPLOYEES

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In the Matter of an Interest Arbitration )

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between )

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DEPARTMENT OF HOUSING AND URBAN )

DEVELOPMENT )

SAN FRANCISCO REGIONAL OFFICE )

REGION IX )

SAN FRANCISCO, CALIFORNIA )

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and ) Case Nos. 91 FSIP 95

) 92 FSIP 20

LOCAL 1450, NATIONAL FEDERATION )

OF FEDERAL EMPLOYEES )

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ARBITRATOR'S OPINION AND DECISION



Local 1450, National Federation of Federal Employees (Union) filed a request with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, (Statute) between it and the Department of Housing and Urban Development, San Francisco Regional Office, Region IX, San Francisco, California (Employer). The Panel directed the parties to submit the dispute concerning two separate office relocations to the undersigned for mediation-arbitration. In accordance with this procedure, I was vested with authority to mediate with respect to all outstanding issues and to render a decision should any remain unresolved.



On February 20 and May 4, 1992, representatives of the parties

convened before me at the Employer's premises in San Francisco, California. During each meeting I conducted a site visit to both the 8th and 9th floors which are the subject of this relocation dispute. During the meetings the parties were afforded the opportunity to present in full their respective final positions, offer testimony, and submit documentary evidence for the record. Accordingly, the record is now closed, and I have considered all of the evidence and argument contained therein.



BACKGROUND



The Employer's mission is to administer federal housing and community development assistance programs. The Union represents approximately 292 employees in the San Francisco Region, some 210 of whom are affected by the moves to different floors within the Employer's facility. They occupy such positions as clerical support, architect, engineer, attorney, loan specialists, accountant, and appraisers. Their grades range from GS-4 to -13. The parties are covered by a master collective-bargaining agreement, which was originally to expire on August 12, 1988, but has been rolled over on an annual basis pursuant to article 29. This dispute arose from negotiations pursuant to the settlement of an unfair labor practice charge. It provided relevant portion as follows:



We will negotiate in good faith with NFFE over the relocation of unit employees of the San Francisco Regional Office, including negotiating over the floorplan and office design. This obligation to negotiate includes, if necessary, reconstruction of the new offices to conform to the agreement negotiated by the parties.



In transmitting the settlement agreement to the Employer's representative, the Acting Regional Director of the Federal Labor Relations Authority explained that: the negotiations of the relocation of the San Francisco Regional Office unit employees will, if necessary, be given retroactive effect. This includes the reconstruction of the new offices to conform with the agreement negotiated by the parties.



You agree that NFFE Local 1450's proposed floorplan concerning the relocation provided to you on approximately October 26, 1990, includes proposals that are negotiable. You agreed to negotiate in good faith on each and every topic and proposal which has already been found to be negotiable by the Federal Labor Relations Authority (FLRA) case law, as illustrated by the decision in Department of Labor, 25 FLRA 979 (1987); Office of Personnel Management, 33 FLRA 335 (1988).





THE ISSUES



The issues which were still unresolved when the dispute was given to me were as follows:



*1. A proposal by the Union for the complete revision of the configuration of the offices on each of the eighth and ninth floors to maximize natural light -- this, despite the fact that the ninth floor had been completed and was already occupied and the construction on the eighth floor was virtually completed.



*2. A Union proposal to increase the height of the permanent partitions that divide the cubicles in which the employees work, from the currently constructed 4 feet, to 5 feet.



*3. A Union request for the installation of dividers within the cubicles where four persons are assigned to one cubicle so that each employee would be separated from the others on three sides.(1)



4. A Union request that all GS-13 employees be supplied with a private office.



FINDINGS



At the conclusion of the meeting with the undersigned on

February 20, 1992, I proposed the following settlement;



1. The Union would withdraw its proposal for a complete change in the configuration of the seating and office arrangements of the two floors, on the basis that it was virtually impossible from a cost and programming standpoint to consider, and for the further reason that the superiority of the new plan over the present one had not been established.





2. The Employer would install a decorative piece, of an appropriate quality, on the cap of the present 4-foot partitions on both the eighth and ninth floors, that would increase the height of the partitions to at least 4-foot 10 inches, and that, if possible, it would be of a material that would give a maximum suppression of the sound traveling over the partitions. (The Union had previously stated that it was withdrawing the sound problems as an issue at impasse).





3. The Union agreed that it would alter its request for a private office for each person classified as a GS-13, and instead the parties would jointly examine the work of those employees holding such positions to determine the need for a private office, on the basis of the requirements of each particular work assignment. It was further agreed that if they could not agree on

any particular job assignment, such case, or cases, would be submitted to a private arbitrator.



4. Dividers would be supplied where four employees were assigned to one cubicle, in order that employees might have the maximum privacy practicable.



This was to be a negotiated settlement, leaving the parties to work out the details in the best interests of all parties including the cost to the taxpayers as one of the major interests. It was estimated by this basis, by utilizing the temporary dividers that were available, the cost would approximate $50,000.



All of the representatives indicated their acceptance of this agreement, and indicated their belief that it could be the basis for a settlement of the dispute. The principal spokesman for the Employer at this meeting, however, indicated that he would be required to get approval of the Regional Director, because he had been restricted from finalizing any agreement regarding the changing of the height of the partitions because of the estimated cost. It was agreed that (1) we would consider this as a settlement and he would present the proposal to the Regional Director and (2) a decision would be forthcoming immediately. The representatives of both sides left the meeting that day with the firm belief that the dispute had at last been resolved. I indicated to the parties that I felt we had exhausted all efforts

to negotiate a settlement and if the Regional Director did not approve it, then I would proceed to decide the dispute and issue an award.



We anxiously awaited a reply. Five days later, not having received a reply, I called the Employer and talked to the labor relations attorney who attended the meeting, and was told that another individual, who had been on the Employer's team at the time of the negotiations, had talked to the Regional Director and that he had rejected the proposed settlement because of the cost which he estimated to be over $200,000.



When we finally received a written communication from this representative he referred to the cost of demolition and other matters such as tearing down the newly constructed partitions, which was not at all a part of the settlement proposal that I made. Therefore, a question arises as to the information considered by the Regional Director.



Because of the complicated nature of this problem, and the difficulty of writing a formal award with so much contradiction between the parties, two additional conference calls were arranged; Friday, I asked that each party (1) send me a definitive description of its position and (2) serve such position on the other party so that each would have one more chance to clarify just what it was proposing. I received an amended proposal from the

Union with respect to the plan to increase the height of the partitions, but nothing definitive from the Employer either on what they were proposing or what the impact of the Union's final proposal would be. The new Employer representative did say, in his letter, that he did not feel that the Union's estimate of the costs were reliable. Furthermore, that the Employer's position was that the space "should remain as it is currently built out."



In order to make sure that I had all of the facts that were available, I met once more with the parties in San Francisco on May 4th, to let the Employer know that, having received nothing from the Employer, regarding the partitions or the dividers I was going to base my decision on the Union's proposal. I was making myself available to hear any comments that the representatives might want to make. The second representative was not at the meeting; the original representative once more was the spokesman for the Employer. He had very little comment to make except that the Employer did not want to use the old dividers; if it were ordered to install dividers in a Decision it would buy new ones.



One more visit to the workplace found serious discord and low morale to be clearly evident. This has reinforced my conviction of the need for the dividers which the Union is requesting.



CONCLUSIONS



On the basis of the findings which are outlined above, I have concluded that the changes requested with respect to the height of the partitions, and the availability of dividers to be used the areas occupied by individual employees within the cubicles, are fully justified by the needs of the bargaining-unit employees in the workforce. The morale of the employees has been damaged to such a degree by the Employer's handling of this matter that, even with these changes, in my judgement a serious morale problem will remain for some time.



DECISION



1. The Employer will proceed forthwith to make the changes in the height of the partitions in accordance with the last proposal submitted by the Union to the Arbitrator and the Employer in its communication of March 6, 1992.



2. The Employer will install dividers in those cubicles where four employees are stationed in one cubicle. Such will be 8 feet in height in order to match the permanent partitions. This will give privacy on three sides to the employees as requested by the Union proposal. The blue-prints which were supplied with the Union's letter of April 21st, clearly designate the areas referred

to in its proposal.



3. The parties will accept as an addition to their current contract a clause which will read as follows:



Any GS-13 employee, who does not have a private office and who feels that a private office is necessary in order to properly discharge the duties of this position, may make application to the appropriate Employer representatives to be assigned to a private office. If such a request i