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The decision of the Authority follows:
16 FLRA No. 117 NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), HEADQUARTERS Respondent and NASA HEADQUARTERS PROFESSIONAL ASSOCIATION, LOCAL 9, IFPTE/AFL-CIO Charging Party Case No. 3-CA-2102 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed. Exceptions to the Judge's Decision were filed by the Charging Party and an opposition thereto was filed by the Respondent. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommendation that the complaint be dismissed. In connection with a reorganization of its office, the Respondent moved seven employees to different offices. The Union sought bargaining regarding the effect of the allocation of office space as to two employees. The Judge found that the Respondent did not violate section 7116(a)(1) and (5) of the Statute by refusing to bargain as requested by the Union. In this regard, the Judge found that one of the employees allegedly affected by the move (Chase) was a "management official" within the meaning of section 7103(a)(11) of the Statute. The Authority has examined the record in this regard in light of the principles enunciated in Department of the Navy, Automatic Data Processing Selection Office, 7 FLRA 172 (1981), and concludes that the Judge made the correct determination. Thus, the Authority agrees with the Judge's conclusion that the Respondent was therefore under no duty to bargain as to Chase. As to the second employee (Wiskerchen, who sought to be but was not moved), the Judge found that the impact of the move was not "substantial" and concluded that the Respondent was therefore not obligated to bargain as to him. We agree with the Judge's conclusion, but for the following reasons. In U.S. Government Printing Office, 13 FLRA No. 39 (1983), decided by the Authority subsequent to the issuance of the Judge's Decision, the Authority rejected the "substantial impact" test and held that where an agency, in exercising a management right under section 7106 of the Statute changes conditions of employment of unit employees, a statutory duty to bargain comes into play if the change results in an impact on unit employees or such impact is reasonably foreseeable. Here, based upon the Judge's finding that Wiskerchen was the only unit employee involved, and that his working conditions were not affected by the move, it is concluded that the General Counsel has not shown that the changes implemented by the Respondent resulted in an impact or a reasonably foreseeable impact on unit employees so as to give rise to a duty to bargain. Accordingly, we shall dismiss the complaint. ORDER IT IS ORDERED that the complaint in Case No. 3-CA-2102 be, and it hereby is, dismissed. Issued, Washington, D.C., December 17, 1984 /s/ Henry B. Frazier III Henry B. Frazier III, Acting Chairman /s/ Ronald W. Haughton Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), HEADQUARTERS Respondent and NASA HEADQUARTERS PROFESSIONAL ASSOCIATION, LOCAL 9, IFPTE/AFL-CIO Charging Party Case No.: 3-CA-2102 Richard L. Dunn, Esquire For the Respondent Carolyn J. Dixon, Esquire Heather Briggs, Esquire For the General Counsel Steve Schwartz For the Charging Party Before: RANDOLPH D. MASON Administrative Law Judge DECISION This is a proceeding under the Federal Service Labor-Management Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq. It was instituted by the issuance of a complaint on June 10, 1981, by the Regional Director for Region 3 of the Federal Labor Relations Authority. The complaint alleges that the National Aeronautics and Space Administration (NASA) Headquarters, hereinafter "respondent", violated Section 7116(a)(5) and (1) by refusing to negotiate about office accommodations for bargaining unit employees since February 18, 1981. In the answer and opening statement respondent alleged, inter alia, that it was under no legal obligation to negotiate about this matter because (a) no bargaining unit employees were involved and (b) there was no material, adverse effect on any such employees. Respondent maintained these positions throughout the entire proceeding. Respondent also argues that the union's February 17, 1981, request for bargaining was untimely and that notice of the proposed relocation occurred on December 5, 1980; that the union forfeited its right to bargain by engaging in delaying tactics on February 18, 1981; and, that no working conditions were changed for employees. In addition, respondent contends that the charge itself is invalid because it was filed on behalf of the union by its president, Richard Storm, and that the latter was a "management official" and thus ineligible to act for the union. Finally, respondent urges the undersigned to infer that someone in the Regional Director's office violated the regulations by leaking confidential information to the charging party. A hearing was held in this matter on July 9, 1981, in Washington, D.C. All parties were represented and afforded full opportunity to adduce evidence, examine and cross-examine witnesses, and argue orally. Respondent's motion to correct the transcript is granted. Briefs filed by respondent and the General Counsel have been duly considered. Upon consideration of the entire record in this case, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommended order: Findings of Fact At all times material hereto, NASA Headquarters Professional Association, Local 9, IFPTE/AFL-CIO (the "union") (previously known as Local 9, American Federation of Technical Engineers, AFL-CIO) has been the exclusive representative for an appropriate unit of certain scientists and engineers employed by respondent. In November of 1980 the union and respondent negotiated certain matters arising out of a reorganization of the NASA Office of Space Science (hereinafter "Code S"). At that time respondent was not sure whether the physical relocation of any employees would be necessary, but respondent stated that it would duly notify the union in advance if such a decision was made. On December 5, 1980, management held a meeting with all Code S employees at which the reorganization was officially announced; the meeting was attended by the union president, Richard Storm, who was duly notified in advance by respondent. At the meeting respondent stated that the reorganization would probably result in the physical relocation of some employees so that the employees in each division would have their offices in the same general location. However, no decision had been made regarding new office accommodations for any employees at that time. Subsequently, respondent decided that seven of the 35 individuals working in Code S would have to move to different offices in order that all employees in each reorganized division would have contiguous offices. A proposed new floor plan was drafted reflecting the new office locations for these individuals. All of the offices affected were relatively nearby and located on one hallway. Five of the employees (Noblitt, Benson, Dondey, Chase and Warner) /1/ were to be moved to nearly identical (and sometimes larger) offices, with windows, down the hall. One employee, Kaluzieski, was to be moved from an interior office to a more desirable window office; another, Glabb, was to be moved from an interior office to a larger interior office nearby. On February 11, 1981, at 4:15 p.m. respondent gave the union copies of both the old floor plan and the new, proposed floor plan showing exactly where each of the above-mentioned seven employees would be moved. At that time, the union was told that the relocation would occur on February 23, and that comments regarding the impact and implementation of the proposal should be given to respondent by February 17, 1981. After receiving this notice of February 11, the union asked Roland Chase, the steward for Code S, to check with the employees to ascertain whether there were any matters which might be negotiated. Chase was out of town until Tuesday, February 17 (Monday was a holiday) but polled the employees upon his return. On the afternoon of February 17, union president Storm notified respondent's labor relations officer, Walter Pierce, that the union desired to negotiate the "procedures, impact and implementation" of the respondent's proposal, and suggested that the "initial negotiating session be held at 10:00 a.m. on Friday, February 20, 1981." Storm also stated that Chase would act as chairman of the union's three-man negotiating team. As a result of Chase's investigation, the union had decided that it wanted to negotiate about the office accommodations of two employees. One, Wiskerchen, was not being moved, but wanted a larger office. There is no evidence that moving Wiskerchen would have solved any problem arising out of the reorganization. His working conditions were not going to change in any way by virtue of respondent's proposals. The other employee allegedly "adversely affected" was Chase. The latter was scheduled to move to a larger, more desirable office but first would be required to move, in the interim, to a small office (his old office was also small) for several months with a different telephone extension. The union wished to negotiate appropriate arrangements for Chase. The evidence of record reveals that Roland Chase was a management official and, therefore, was not a member of the bargaining unit. He was the Chief Engineer (GS-15) for the Spacelab Flight Division. The major part of his function consisted of preparing guidelines and developing policy for the planning and implementation of missions in the entire Division. The Division routinely issued major policy statements and directives based on Chase's recommendations. In short, Chase played a "strong" and "critical" role in determining, formulating, and influencing the content and direction of National space programs and policies. On February 18 at about 9:00 a.m. Pierce delivered a letter to Storm stating that management was unavailable for negotiations on February 19 and 20, (although no explanation was given, two negotiators were scheduled to testify before a Congressional committee), but that it would meet with the union at 2:00 p.m. later that same day, February 18. Immediately after receiving this letter, Storm attempted to contact Chase, his chief negotiator. Chase's secretary told Storm that Chase was at a doctor's appointment and she did not expect him back until noon. Storm checked two more times that morning to see if Chase had returned and left an "urgent" message for Chase to call him immediately upon returning. Meanwhile Storm had conferred with one of the other chosen negotiators, Davids, about their predicament. They resolved to try to accommodate management if possible, but that the presence of Chase would be necessary at the negotiating session. Davids had a conference scheduled which conflicted with the proposed 2:00 p.m. meeting, and he was unable to find a substitute. Storm decided he and Chase would attend without Davids if he could find Chase. At 1:30 p.m. Storm delivered a letter to Pierce's secretary in which he stated that the union was not able to meet at 2:00 p.m. "since our negotiators are tied up with work assignments, etc." Since respondent was supposed to be unavailable on February 19 and 20, he suggested they negotiate on the proposed implementation date, Monday, February 23. He said that if this was not satisfactory, the union would "bend over backwards" to resolve the problem. After delivering the letter to Pierce's office, Storm saw Pierce in the hallway and merely mentioned that he had left a letter for him. Storm then spent the rest of the afternoon out of his office in another part of the building. He made no attempt to contact management or Chase during that period. Meanwhile, by 2:00 p.m. Pierce had become aware of the fact that Chase had returned to the building and management was ready to bargain. He called Storm several times but the telephone did not answer. Pierce and his negotiating team went to the assigned location for the 2:00 p.m. meeting, and the union did not appear. Thereafter Pierce delivered a memorandum to Storm's office in which he stated management was not required to meet at the convenience of the union and that the latter had forfeited its opportunity to negotiate. He stated that management would implement the proposed changes on February 23, 1981. The next morning at a monthly union-management meeting respondent maintained its position that it was no longer under any obligation to negotiate over the matter. By 10:00 a.m. on February 19 and 20, management was notified that its negotiators would not be required to attend Congressional hearings. Thus by 10:00 a.m. on each of these days all of respondent's negotiators would have been available to bargain with the union; however, respondent did not notify the union of this fact and did not make itself available for negotiations. Instead, Pierce spent several hours documenting the fact that all possible union negotiators were "available" at 2:00 p.m. on February 18 and were not precluded from negotiating by "work assignments." Pierce was not told of Chase's February 18 doctor's appointment until February 19. Meanwhile, he noted that Chase had not signed up for leave. In an effort to discredit Storm's contention about Chase's unavailability, on April 14 Pierce told an FLRA investigator about Chase's failure to sign for leave. One week later, Chase amended his time card for February 18 to reflect his leave between 10:00 a.m. and 2:00 p.m. /2/ On February 23 respondent implemented the move of the seven individuals in Code S. On March 13, 1981, Storm filed a charge on behalf of the union in this case. In his job Storm is required to "(f)ormulate Level I program RQ&S (Reliability, Quality, and Safety) policies and requirements and to provide authoritative interpretations of program RQ&S policies/requirements . . . ." The scope and effect of Storm's job is such that he is "responsible for a widely diverse range of major functions essential to the successful design, test/verification and operation (ground and flight) of the Spacelab. The policies, requirements and procedures established by (Storm) have a major impact on Spacelab mission success, safety and program developmental and operational costs." (Resp. Exh. 2). Conclusions of Law As a result of respondent's reorganization of the divisions within Code S, it became necessary to physically relocate the offices of seven individuals so that all employees would be near the other employees in their respective divisions. Respondent notified the union of this proposed change on February 11, 1981. /3/ On February 17 the union requested bargaining on impact and implementation; thereafter, when the union said it was unavailable for a 2:00 p.m. bargaining session on February 18 proposed by respondent, management suspected that the union was engaging in delaying tactics and refused to engage in further bargaining on the proposal. Management could easily have given the union the benefit of the doubt and made itself available for bargaining on February 19 and 20; however, it failed to do so. Thereafter, respondent unilaterally implemented the office relocation on February 23. Counsel for the General Counsel takes the position that respondent violated Section 7116(a)(5) and (1) by refusing to bargain with the union over the procedures employed by respondent in exercising its right to relocate employees pursuant to the reorganization under 7106(b)(2) and appropriate arrangements for adversely affected employees under Section 7106(b)(3). During the course of this proceeding respondent has at all times contended, inter alia, that it had no statutory obligation to bargain because the individuals who were either relocated or otherwise affected were neither bargaining unit employees nor adversely affected. With regard to respondent's first point, it is clear that the right to bargain arises only in relation to bargaining unit employees. Section 7103(a)(12) defines "collective bargaining" as the performance of the mutual obligation of the representative of an agency and the exclusive representative of "employees in an appropriate unit" in the agency to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such "employees." Management officials and supervisors are specifically excluded from the definition of an "employee." Section 7103(a)(2). Secondly, the Authority has held that where the right to bargain under Section 7106(b)(3) is asserted, the General Counsel has a burden of proving that bargaining unit employees would be substantially and adversely affected by the exercise of management rights under Section 7106. Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 5 FLRA No. 45 (1981). Since "impact" and "implementation" bargaining both arise out of the exercise of management rights, frequently involve the same issues, and have traditionally been considered closely related rights, it is reasonable to assume that the above rule should apply to rights arising under Section 7106(b)(2) as well as Section 7106(b)(3). Applying these principles to the instant case, the union president testified that only two employees were adversely affected by the relocation. /4/ One of these employees was not moved at all, but wanted to be moved to a larger office. There is no evidence that relocating that employee would have solved any problem arising out of the reorganization. His working conditions were not changed in any way by respondent's decision. The union also felt that Roland Chase was adversely affected. Chase was scheduled to move to a larger, more desirable office but first would be required to move, in the interim, to a small office for several months with a different telephone extension. Assuming arguendo that Chase was adversely affected, it is clear that Chase was not a bargaining unit employee. He was a "management official" under Section 7103(a)(11). In this regard it is clear that Chase played a strong role in formulating and influencing agency policy. As previously stated, the right to bargain arises only with respect to the conditions of employment of unit employees. Since the General Counsel failed to meet his burden of proving a substantial and adverse impact on unit employees, I am unable to conclude that the union had any right to bargain with respect to the impact and implementation of respondent's decision to relocate any of these employees. /5/ Thus, even though respondent's precipitous refusal to bargain would normally have given rise to a violation of Section 7116(a)(5) and (1) it cannot be held that respondent infringed upon any bargaining right in the instant case. Accordingly, I recommend that the Authority adopt the following: /6/ ORDER It is hereby ordered that the complaint in Case No. 3-CA-2102 be, and it hereby is, dismissed. /s/ Randolph D. Mason RANDOLPH D. MASON Administrative Law Judge Dated: November 6, 1981 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ Noblitt and Benson were not in the bargaining unit because they were "supervisors" who directed and assigned work to other employees. As more fully discussed hereinafter, Chase was also outside the unit because he was a "management official." The record is silent as to the status of the other four individuals who were moved. Respondent has always contended that no unit employees were affected. /2/ Pierce also provided the investigator with his personal copy of his previous November 17, 1980, letter to Storm. A copy of this letter was subsequently shown to Storm in preparation for trial by someone in the Regional Director's office. Since the letter had originally been written to Storm, the "disclosure" was not improper, for nothing new was disclosed. /3/ The notification on December 5, 1980, lacked the requisite degree of specificity because respondent had not yet decided which employees would have to be moved. U.S. Department of Air Force, Air Force Systems Command, 5 FLRA No. 88 (1981). /4/ No other evidence relating to "adversely affected" employees (either moved or unmoved) was adduced at the hearing. The evidence merely shows that all the other employees who were moved got identical or more desirable offices a few doors down from their old offices. /5/ It is also noted that Counsel for the General Counsel failed to meet the burden of proving that even one of the individuals who was moved or otherwise affected by the relocation was a member of the bargaining unit. Respondent consistently maintained from the outset that no unit members were affected. Cf., Department of the Navy, Naval Weapons Station, Concord, California, A/SLMR No. 1020 (1978). The General Counsel was also aware that respondent had filed a CU petition in 3-CU-81 seeking to exclude a large number of Code S employees from the bargaining unit. /6/ In view of these conclusions I have found it unnecessary to reach several other arguments advanced by respondent.