GENERAL SERVICES ADMINISTRATION TUSCON, ARIZONA and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 81
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424
GENERAL SERVICES ADMINISTRATION .
TUSCON, ARIZONA .
. Case No. 98-CA-10496
NATIONAL FEDERATION OF FEDERAL .
EMPLOYEES, LOCAL 81 .
Charging Party .Deborah Finch Representative of the Respondent
Fred Huerta Representative of the Charging Party
Lisa Clare Lerner-Miller Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER Administrative Law Judge
Statement of the Case
The unfair labor practice complaint alleges that Respondent
violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute (the Statute), 5 U.S.C. §§
7116(a)(1) and (5), by unilaterally reorganizing office space and
changing work assignments and procedures without first notifying
the Charging Party and providing it an opportunity to bargain over
the impact and implementation of the changes.
Respondent's answer admitted that Respondent had moved a
desk and issued a memorandum without advance notice to the Charging
Party, but denied any violation of the Statute.
A hearing was held in Tucson, Arizona. The Respondent,
Charging Party and the General Counsel were represented and
afforded full opportunity to be heard, adduce relevant evidence,
examine and cross-examine witnesses, and file post-hearing briefs.
The Respondent and General Counsel filed helpful briefs. Based on
the entire record, including my observation of the witnesses and
their demeanor, I make the following findings of fact, conclusions
of law, and recommendations.
Findings of Fact
The National Federation of Federal Employees (NFFE) is the
exclusive representative of a nationwide unit of employees of the
General Services Administration, Washington, DC, appropriate for
collective bargaining, including employees at Respondent's
facilities in Tucson, Arizona. The Charging Party is an agent of
NFFE for representing employees at Respondent's Tucson
Gary Analora, Area Utilization Officer (AUO), GS-l2, a
supervisor, works with Carol J. Decker, Property Utilization
Technician, GS-7, and Shirley Beene, Property Utilization
Specialist, GS-l2, in Respondent's Tucson facility. Prior to
approximately August 5, l99l, Analora and Decker shared a l2 foot
by thirty foot and four inch office. Decker had the first third,
the third nearest the door, Analora had the center third, and the
last third was a break room. Beene worked in an adjoining
Prior to August 5, l99l, Analora and Beene discussed with
Decker the possibility of Beene moving into the office. Decker
objected to the idea. She had previously submitted other plans to
Analora for utilization of the space, but Decker and Beene had
objected to them.
From about July l0, l99l until August 5, l99l Decker was on
a detail outside the office. During this period Analora moved the
break room out of the office and moved Beene in. He secured two
matching desks for Decker and Beene so that they would match his
own desk. Decker had previously used a one pedestal desk (drawers
on one side only). The new desk was a two pedestal (drawers on both
sides). He put Decker's desk in the middle since she had complained
of drafts in her old location. The new location put her desk
directly in front of the water cooler and a few feet from the hall
entrance to the men's room. Analora also removed Decker's cork
board on which she kept quick-reference materials for her work and
relocated the chairs for visitors. Decker no longer had a visitor
chair by her desk.
Analora felt that the new arrangement would improve the
appearance of the office as well as the working relationships. He
concluded that moving the furniture would not violate the Union
contract. In this regard, the l988 National Agreement between GSA
and the Union provided, in part, as follows:
. . .
Section 4. Regional and Local Negotiations
. . .
C. The Union will be advised at the local level of proposed changes in personnel policies,
practices, and working conditions initiated by local managers or initiated at a higher level but
only affecting the local level (i.e. a reduction-in-force). Negotiations resulting from such
changes will be conducted by the Local Parties.
Section 1. Space Redesigns
The Employer will engage in negotiations as appropriate with the Union when redesigning
space occupied by employees and will consider union views if redesign is caused by
technological requirements necessary for performance of
Section 2. Space Assignment
Assignment of space will be as equitable as possible given that portion of the total office
space that is required for work stations and should take into account the specific duties
assigned to an employee.
Section 3. Space Relocation
The Employer will notify the Union prior to undertaking any major moves (entire Branch or
larger organizational unit) of bargaining unit
Decker returned from her detail on August 5, l99l. She did
not like the new office arrangement. The two pedestal desk made it
difficult to use her typewriter since both sides of the desk now
contained drawers. She had previously used one free side to swivel
around to the typewriter. She objected to being positioned between
the other two employees. This placed her desk directly behind the
water fountain and a few feet from the hallway entrance to the
men's room. She claimed that being located behind the water
fountain meant that "anybody who wants a drink puts their rear end
right in your face" and, as the door to the hallway was kept open,
she was embarrassed by being able to observe the entrance to, and
hear sounds from, the men's room. She missed the quick reference
material on her cork board which aided her work. Customers visiting
her no longer had a place to sit next to her desk.
Upon Decker's return from the detail, Analora presented her
with a memorandum stating, "The following changes in office
procedures are in effect as of this date[.]" The memorandum
contained ll paragraphs and concluded with the statement, "I will
notify you of additional changes as they occur from time to time."
The parties agree that paragraphs two and nine did not make any
changes. The other paragraphs are set forth below with findings as
to the material changes, if any, established by the record.
l. Lunch is not to be eaten at your desk. You are to select a 1/2 hour uninterrupted
lunch period between 11:00 a.m. and 1:30 p.m. Unless otherwise notified by you as to
your preference by 4:00 p.m. on 8/5/91, your lunch period will be 12:00 p.m. to 12:30
p.m. Turn the phone answering machine on during your lunch break. When leaving the
office for lunch, sign out on the message board.
Prior to August 5, l99l, Decker was not required to eat
lunch on a set schedule, avoid her work area at lunch time, or sign
out when departing the office.
Decker had previously been instructed not to go to lunch
until the mail delivery had been made, sometime between l2 and 2
p.m., and had been reprimanded for once going to lunch and missing
the delivery. Decker was concerned about how she was to receive the
mail deliveries and what she should do if she was eating lunch
elsewhere in the building and a customer requested services. About
a week after the change, Decker advised Analora that she did not
want to take the same lunch period everyday. Analora did not
respond to her comment.
2. You are to take phone messages for both AUO's, Shirley and myself on a SF 63
Memorandum of Call. It is to be completely and legibly filled out including your initials,
date and time. Leave the forms on the center of our desks weighted down or hand them
to us upon our return to the office.
Prior to this change, Decker had recorded telephone messages on self-sticking paper rather than on the SF 63. Decker was concerned that she was to record messages "completely," because often individuals did not give all the information called for on the Memorandum of Call. However, it was only intended that she continue to completely and legibly record all the information she had been given.
3. Weekly reports and/or monthly reports for both AUOs will be your responsibility.
They are to be completed in a timely manner and the entire report including copies of
the SF 122's and SF 123's will be provided to the AUOs for
review and approval.
Prior to this change, Decker had not prepared the weekly and
monthly reports for Beene and had not attached copies of the SF
l22's and SF l23's. The additional preparation for Beene would only
take 5 or l0 minutes a week. Decker did not object to attaching the
4. Your delegated authority for approving SF 122's and SF 123's is with my
permission only on a case by case basis. All transfers and donations will be
approved by Shirley or myself unless specific permission is granted to you by
myself either directly or by phone.
Prior to this change, Decker, for seven and one-half years,
had routinely approved property transfers and donations in the
absence of the Area Utilization Officer. Analora was absent part of
almost every day and sometimes for a week. This change, requiring
approval by Analora or Beene, unless special permission was granted
on a case by case basis, represented a significant change in
Decker's duties. Analora subsequently granted special permission in
accordance with the instructions on October l8, l99l, and, on
December ll, l99l, clarified the instructions by further
authorizing Decker to approve orders if the order had been faxed
in, in any unusual emergency, or if a hand carried transfer was
brought in for approval.
5. You are to date stamp all documents received in the office by whatever means
using the date stamp machine. Advise me when the machine
Decker testified that the problem with this instruction was
that they had never had a time stamp machine before she left and
only Analora had the key with which to make date changes. She was
fearful that any mistake in dates could affect her performance.
I credit Analora's testimony that the office acquired the
date stamp before Decker's detail; that no key was required to
change the date; and that, if the machine failed to work properly,
pen and ink changes were always acceptable.
6. Your duties include typing of any and all correspondence for both AUO's, Shirley
Decker's position description provided that she was to type
a variety of correspondence and "do all the clerical work of the
office." However, for approximately eight years Decker had not done
the typing for the Property Utilization Specialist.
This instruction represented a change which Analora
concluded was within Decker's job description. The record does not
reflect how much typing this would involve for Decker, or how much
of her work day would be devoted to typing for Beene.
7. On a daily basis you are to review and distribute the mail appropriately, forward
to Sales all reports past the Surplus release date, file all documents in appropriate files or
Prior to this instruction, Decker had forwarded reports and
filed documents on an as needed rather than daily basis.
8. If you are aware or have reason to believe transfers or donations are improperly
approved by acquiring agencies, advise me. Do not initiate direct contact yourself to
question agency officials' authority. I will take that
Decker's position description provided that she, "Examines
document for accuracy and authorized signatures" and "Checks
incoming documents to assure proper information, authority, and
reportability of property declared excess. Contacts submitting
office for clarification or correction." In the past, prior to
August 5, l99l, Decker had been responsible for ensuring that
documents were correct, that the receiving party was authorized to
possess the property, and that the documents bore an authorized
signature. She maintained a file of delegations from agencies of
signature authority and checked incoming documents against that
file. She spent two to three hours per day pursuing corrections to
documents by initiating direct contact with agencies, explaining
any problem, and obtaining corrections.
Analora initiated the change because of complaints he
received in February or April l99l concerning an incident when
Decker had contacted an agency and was not as tactful as he felt
she should have been in questioning the signature authority. Prior
to this incident, he had not had any complaints about her
9. At all Spot Bid Sales conducted by GSA where you are required to attend, your
specific work assignment unless otherwise advised, will be that of official high bid
amount recorder and guardian of the accepted bid card. Appropriate instructions will
be provided at each sale.
Decker testified that it was impossible for her to be the
guardian of the accepted bid card because the bid card had to be
relinquished to the typist and then to the cashier. This is all
that was intended by this instruction. Analora simply referenced
the usual practice whereby the high bid recorder takes the bid
card, which is the basis of a legal contract, to the typist and
later to the cashier to perform certain duties.
No Notice to Union
The Union was not notified in advance of either the
rearrangement of the office furniture or the August 5, l99l notice
On August 6, l99l, Decker advised the Union of these
matters. On the same date, Fred Huerta, President of Local 8l,
telephoned Mr. Analora and stated that the Union should have been
advised ahead of time. Analora replied that there was no need to
consult or negotiate with the Union. He refused to negotiate with
In the past, in November l99l, Huerta was notified of a
proposed move of GSA employee desks in the Federal Building,
located about a mile from Decker's office. He addressed the issue
of telephone outlets and an agreement was reached.
Discussion and Conclusions
The General Counsel contends that Respondent violated
section 7116(a)(1) and (5) of the Statute by reorganizing the
office space and changing work assignments and procedures without
first notifying the Union and affording it an opportunity to
bargain over the impact and implementation of the changes. Counsel
for the General Counsel argues that the changes in the work area
and in Decker's job duties' were more than de minimis, gave rise to a duty
to bargain, and the Union did not waive its statutory right to
bargain through the contract.
Respondent defends on the basis that the changes in the
office area affected only two employees in a unit of more than
4,000, were de minimis, and that Article 31, Section 3 of the parties'
collective bargaining agreement waives bargaining on such matters
except for major moves. With respect to the items in Supervisor
Analora's memorandum of August 5, 1991, Respondent claims that very
few items constituted changes and any changes were de minimis.
There is no dispute that the matters involved conditions of
employment. Where an agency in exercising a management right under
section 7106(a)(1) of the Statute changes conditions of employment
of unit employees, the statutory duty to negotiate under section
7106(b)(2) and (3) comes into play if the change results in an
impact upon unit employees or such impact was reasonably
foreseeable. U.S. Government Printing
Office, 13 FLRA 203 (1983).
In Department of Health and Human Services,
Social Security Administration, 24 FLRA 403 (1986)
(SSA), the Authority reassessed and
modified the de minimis standard previously used to identify changes in
conditions of employment which require bargaining. The Authority
stated that in order to determine whether a change in conditions of
employment requires bargaining, it would carefully examine the
pertinent facts and the circumstances presented in each case. The
Authority further stated that in examining the record, principal
emphasis would be placed on such general areas of consideration as
the nature and extent of the effect or reasonably foreseeable
effect of the change on the conditions of employment. The Authority
also stated that equitable considerations would be taken into
account in balancing the various interests involved, that the
number of affected employees and the parties' bargaining history
would be given limited application; and that the size of the
bargaining unit would no longer be a consideration.
Applying the SSA standard here, the
nature and extent and the reasonably foreseeable effects of
Respondent's reorganization of its office space and change in
seating assignments was more than deminimis
and gave rise to a duty to bargain. The two pedestal desk made it
more difficult for Ms. Decker to reach and use her typewriter. She
no longer had a cork board with quick reference material, or a
convenient visitor chair for customers to aid her work. It was also
reasonably foreseeable that the location of her desk close to the
water fountain and the men's room would raise objections and affect
As the Authority stated in U.S. Department
of Health and Human Services, Social Security Administration,
Baltimore, Maryland and Social Security Administration, Fitchburg,
Massachusetts District Office, 36 FLRA 655, 668 (1990), in
finding that a change in seating assignments of four employees and
one employee's loss of access to a window was more than
[T]he 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
'condition 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).
Respondent's position, that Article 31, Section 3 of the
parties' agreement waives bargaining on such matters is rejected.
Section 3, Space Relocation, provides, "The Employer will notify
the Union prior to undertaking any major moves (entire Branch or
larger organizational unit) of bargaining unit employees." This
provision, on its face, refers to major moves or relocations and,
by implication, would not require notice of minor moves, such as
that of a section or unit of employees. It does not, on its face,
address the matters involved here, that of changing an office
configuration by relocating a break area, obtaining different
desks, and changing seating assignments to accommodate an
additional employee. No evidence of the bargaining history
concerning Article 31, Section 3 was presented which would
otherwise demonstrate that these matters were covered by the
parties' agreement or the Union clearly and unmistakably waived its
interest in the matter. On the contrary, the provisions of the
contract that most closely refer to the matters in issue reinforce
management's obligation to bargain. Article 31, Section 1, Space
Redesigns, provides that, "The Employer will engage in negotiations
as appropriate with the Union when redesigning space occupied by
employer. . . ." and Article 9, Section 4.C. provides for notice
and bargaining between the Union and management at the local level
concerning proposed changes in personnel policies, practices, and
working conditions initiated by local managers.
With respect to the items in Supervisor Analora's memorandum
of August 5, 1991, I agree with Respondent that the facts discussed
above demonstrate that the changes in Decker's duties, set out in
paragraphs 3, 4, 6, 7, 8, and 11, concerning (1) taking telephone
messages on SF 63's, (2) preparing weekly reports for Ms. Beene,
the Property Utilization Specialist, (3) using a date stamp, (4)
typing for Ms. Beene, (5) forwarding reports and filing on a daily
basis, and (6) being the guardian of the bid card at sales, were
substantially the same as her usual clerical duties; were,
therefore, de minimis; and did not give rise to an obligation to
On the other hand, the changes set out in paragraphs 1, 5,
and 10, requiring Ms. Decker to (1) take a set lunch period away
from her desk and sign out on a message board, (2) limiting her
authority to approve property transfers and donations in the
absence of the Area Utilization Officer, which she had routinely
approved before for several years in his absence, and (3)
prohibiting Decker from directly contacting agencies to assure that
documents bore authorized signatures, which she had spent a large
part of her day doing before for several years, had an effect or
reasonably foreseeable effect on conditions of employment which was
more than de minimis and gave rise to an obligation to bargain.
The latter two changes took away some of Decker's more
responsible and time consuming duties and could lead to a
downgrading of her position. The institution of a rigid lunch hour
for Decker could significantly affect Decker and the rest of the
staff as it was Decker's responsibility to process the mail. Decker
was the only individual in the office for significant portions of
each work day and, under existing arrangements, mail was not
delivered if the office was empty.
It is concluded that Respondent violated section 7116(a)(1)
and (5) by unilaterally reorganizing office space and changing the
above work assignments and procedures which had more than a
deminimis impact without notifying the
Union and affording it an opportunity to bargain over the impact
and implementation of the changes.
The General Counsel requests a status quoante remedy. The evidence shows that Respondent acted willfully, provided no notice to the Union in advance of the changes which had a more than de minimis impact on the unit employee involved, and rebuffed the Union's request for post-implementation bargaining. There is no evidence that a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations. Accordingly, after balancing these factors pursuant to Federal Correctional Institution, 8 FLRA 604, 606 (1982), I conclude that a statusquo ante remedy is appropriate and warranted to best effectuate the purpose and policies of the Statute.
Based on the foregoing findings and conclusions, it is
recommended that the Authority issue the following Order:
Pursuant to section 2423.29 of the Rules and Regulations of
the Federal Labor Relations Authority and section 7118 of the
Statute, it is hereby ordered that the General Services
Administration, Tucson, Arizona, shall:
1. Cease and desist from:
(a) Unilaterally implementing changes in the
working conditions of bargaining unit employees by reorganizing
office space and changing work assignments and procedures without
first notifying the National Federation of Federal Employees, Local
81, the agent of the exclusive representative of certain of its
employees, and affording it an opportunity to bargain to the extent
consonant with law and regulation.
(b) In any like or related manner, interfering
with, restraining or coercing employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Federal Service
Labor-Management Relations Statute:
(a) Upon request of the National Federation of
Federal Employees, Local 81, rescind the changes to the office
space implemented on or about August 5, 1991 and paragraphs 1, 5,
and 10 of Gary Analora's memorandum of August 5, 1991.
(b) Notify the National Federation of Federal
Employees, Local 81, the agent of the exclusive representative of
certain of its employees, of any intended changes in the conditions
of employment of bargaining unit employees and, upon request,
bargain to the extent consonant with law and regulation.
(c) Post at its 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 the Area Utilization Officer and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall
be taken to insure that such Notices are not altered, defaced, or
covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's
Rules and Regulations, notify the Regional Director, San Francisco
Region, Federal Labor Relations Authority, San Francisco,
California, in writing, within 30 days from the date of this Order,
as to what steps have been taken to comply herewith.
Issued, Washington, DC, March 1, 1993
GARVIN LEE OLIVER
ministrative Law Judge
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 implement changes in the working
conditions of bargaining unit employees by reorganizing office
space and changing work assignments and procedures without first
notifying the National Federation of Federal Employees, Local 81,
the agent of the exclusive represen-tative of certain of our
employees, and affording it an opportunity to bargain to the extent
consonant with law and regulation.
WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations
WE WILL, upon request of the National Federation of Federal
Employees, Local 81, rescind the changes to the office space
implemented on or about August 5, 1991 and paragraphs 1, 5, and 10
of Gary Analora's memorandum of August 5, 1991.
WE WILL notify the National Federation of Federal Employees, Local 81, the agent