[ v20 p403 ]
The decision of the Authority follows:
20 FLRA No. 43 DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE AND ITS CLEVELAND, OHIO DISTRICT OFFICE Respondent and NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION, CLEVELAND JOINT COUNCIL Charging Party Case No. 5-CA-30449 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had engaged in the unfair labor practices alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent filed exceptions to the Judge's Decision. 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 recommendations only to the extent consistent herewith. The Judge found that in 1981 Respondent developed a proposal to reduce and consolidate the amount of space used by its Toledo Field Office from three floors to one floor, the fourth floor. The proposal also involved replacement of employee desks with work tables, with two or three employees, approximately, assigned to each table called a "Multiple Occupancy Work Stations" or MOWS. The MOWSs included lateral, two-drawer files placed behind the work tables, and one file for each employee at the table. The Judge, after first noting that the 1983 implementation of the 1981 plan had a significant impact on unit employees, found that the Union's failure to timely request negotiations concerning the 1981 plan did not apply to the 1983 implementation of the plan. She found that the 1983 implementation had made substantive changes in the 1981 plan which reactivated the Respondent's duty to bargain. These changes consisted of Respondent's decision to drop its plan of installing acoustical ceilings and a sound masking system, and its decision to increase the number of people per table from two to three persons to three to four persons. The Judge found that Respondent's decision to install the MOWS system before the structural modifications had been finished, the installation of acoustical ceilings and the installation of a sound-masking system, greatly aggravated the adverse effect of Respondent's decision to increase by one the number of persons at the MOWS tables. The Judge found that these changes had, in toto, a substantial adverse effect on the working conditions of unit employees which "reactivated" the Union's right to bargain over their impact and the procedures for their implementation. The Judge thus concluded that the Respondent's refusal to bargain over the procedures and appropriate arrangements for adversely affected employees violated section 7116(a)(1) and (5) of the Statute. Respondent, in its exceptions to the Judge's decision, argued that the Union had clearly waived its opportunity in 1981 to bargain with regard to the impact of management's decision to implement multiple occupancy work stations; that there was no new impact on employees resulting from the manner in which the plan was implemented in 1983; and that, as employees remained in their present locations, there was no obligation to bargain with regard to its decision not to install sound-masking equipment at the same time that the new furniture was introduced. The Charging Party is the exclusive representative and has a national collective bargaining agreement covering all professional and nonprofessional employees of the Internal Revenue Service, at the district, regional and National Office levels, with certain exclusions not material herein. The Toledo Field Office is but one of three offices in Respondent's Cleveland District and this district is but one of 60 district offices covered by the parties' national agreement. /1/ The Authority has previously held that "where an agency in exercising a management right under section 1706 of the Statute, changes conditions of employment of unit employees . . . , the statutory duty to negotiate 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, 204-05(1983). The Authority thereafter held in Department of Health and Human Services, Social Security Administration, Chicago Region, 15 FLRA No. 174(1984), that "no duty to bargain arises from the exercise of a management right that results in an impact or a reasonably foreseeable impact on bargaining unit employees which is no more than de minimis." In order to determine whether the exercise of a management right will result in a change in a condition of employment having an impact or a reasonably foreseeable impact on bargaining unit employees which is more than de minimis, the totality of the facts and circumstances presented in each case must be carefully examined. Thus, in Department of Health and Human Services, Social Security Administration, Region V, Chicago, Illinois, 19 FLRA No. 101(1985), the Authority looked to such factors as the nature of the change (e.g., the extent of the change in work duties, location, office space, hours, loss of benefits or wages and the like); the temporary, recurring or permanent nature of the change (i.e., duration and frequency of the change affecting unit employees); the number of employees affected or foreseeably affected by the change; the size of the bargaining unit; and the extent to which the parties may have established, through negotiations or past practice, procedures and appropriate arrangements concerning analogous changes in the past. /2/ The Authority also emphasized therein that the factors considered in the circumstances of that case were not intended to constitute an all-inclusive list or to be applied in a mechanistic fashion. Moreover, the Authority noted that a determination as to whether the exercise of a management right under section 7106 of the Statute gives rise to a bargaining obligation under section 7106 of the Statute gives rise to a bargaining obligation under section 7106(b)(2) and (3) will not necessarily require in every case a determination as to whether the exercise of the management right results in a change in a condition of employment having an impact or a reasonably foreseeable impact on bargaining unit employees which is more than de minimis, especially where there is no indication that the nature and degree of impact is at issue in the case. However, in cases where it must be determined whether the nature and degree of impact is more than de minimis, factors such as those listed above will be considered. In applying the above factors to the instant case, the Authority finds that the impact or reasonably foreseeable impact of the Respondent's 1983 action in partially implementing its 1981 reorganization was no more than de minimis. Accordingly, it follows that the Respondent was under no obligation to notify the Charging Party and afford it an opportunity to request bargaining pursuant to section 7106(b)(2) and (3) of the Statute concerning the procedures to be observed in implementing the change or on appropriate arrangements for employees adversely affected by the change. In reaching this result, the Authority notes that the nature of the change consisted of replacing employees' existing furniture with new furniture which was part of Respondent's 1981 decision to go to a MOWS office concept, that the 1983 implementation left unit employees in the same location, and that while the Respondent did not install sound-masking equipment, it also did not reduce and consolidate its office space on one of the floors as planned. The adverse effects discussed by the Judge are effects associated with employees having to give up their individual desks and file cabinets and work in a more cramped work space. These effects arose primarily from the Respondent's decision, in 1981, to go to a MOWS concept. Thus, the nature and degree of the impact of the change in 1983 did not differ from the impact that was foreseeable when Respondent developed its plan in 1981. In order for there to be a 1983 bargaining obligation, the nature of management's action in 1983 must have resulted in new impact or reasonably foreseeable impact, which is more than de minimis, beyond that which was already foreseeable as a result of the Respondent's announced 1981 decision as to which the Union had waived its right to negotiate. Since the 1981 plan would have consolidated the Toledo field office into a smaller area (a reduction of 4,600 square feet) all on one floor, the 1983 implementation did not result in any new impact which was more than de minimis for unit employees. Employees were left on the same floors they had been occupying and the impact that resulted was impact that foreseeably would have occurred had the 1981 MOWS office concept been implemented without modification. In addition, the Authority notes that the Toledo office involved herein is but one of 60 district offices covered by the parties' national agreement. Thus, when considered against the substantially larger number of employees exclusively represented in the nationwide consolidated unit, the number of employees affected by the change involved herein was relatively small. Further, apart from the Union's failure to request bargaining with regard to the 1981 plan, there appears to be no past practice with regard to negotiations concerning analogous changes in the past. Based on the totality of the facts and circumstances presented in this case, and noting particularly the slight nature of the change in working conditions other than those which were reasonably foreseeable as a result of the 1981 announcement, as to which the Union had an opportunity to request bargaining; the few employees affected relative to the total number of employees represented in the nationwide consolidated unit; and the absence of a past practice concerning negotiations over analogous situations, the Authority concludes that the impact or reasonably foreseeable impact of the change in unit employees' conditions of employment affected by management's action in 1983 was not more than de minimis. Therefore, Respondent was under no obligation to notify the Charging Party and afford it an opportunity to request bargaining pursuant to section 7106(b)(2) and (3) of the Statute. Accordingly the complaint, alleging a violation of section 7116(a)(1) and (5) of the Statute, will be dismissed in its entirety. ORDER IT IS ORDERED that the complaint in Case No. 5-CA-30449 be, and it hereby is, dismissed. Issued, Washington, D.C., September 30, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 5-CA-30449 James E. Rogers, Jr., Attorney for Respondent Janice M. Rodgers, Attorney for the Charging Party Sandra LeBold, Attorney for the General Counsel Federal Labor Relations Authority Before: ISABELLE R. CAPPELLO Administrative Law Judge DECISION This is a proceeding under Title VII of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq. (1982), commonly known as the Federal Service Labor-Management Relations Statute (hereinafter referred to as the Statute) and the rules and regulations issued thereunder and published at 5 CFR 2411 et seq. Pursuant to a charge of unfair labor practices filed by the Charging Party on September 9, 1983, as amended on November 1, 1983, the General Counsel of the Federal Labor Relations Authority (hereinafter, the Authority) investigated and, on November 2, 1983, filed the complaint initiating this proceeding. The complaint alleges violations of Sections 7116(a)(1) and (5) of the Statute, /3/ in that, commencing on or about August 26, 1983, and continuing to date, Respondent has failed and refused to negotiate with the Charging Party concerning the impact and implementation of the physical reorganization of its facilities in Toledo, Ohio, and has implemented the reorganization without bargaining with the Charging Party. Respondent denies that it has violated the Statute and alleges that the complaint fails to state a sufficient claim upon which relief can be granted; that, even if the complaint is true, it fails to state a prima facie case of an unfair labor practice; and that notice of the proposed renovation of the Toledo facility was given to the National Treasury Employees Union on March 31, 1981. Respondent admits that, by letter dated July 29, 1983, the Charging Party requested bargaining concerning the proposed physical changes in work areas at the Toledo facility and submitted proposals for such negotiations; and it further admits that Respondent refused to bargain with the Changing Party concerning its proposals. Respondent's Motion to Dismiss or in the Alternative for Summary Judgment was denied on January 12, 1984. A hearing was held on January 24, 1984, in Cleveland, Ohio. The parties appeared, adduced evidence, and examined witnesses. Briefs were received on March 19, 1984, from the General Counsel, on March 22 from Respondent and on March 26 from the Charging Party, pursuant to an order granting an extension of time to file briefs until March 21, 1984. Based upon the record made in this case, my observation of the demeanor of the witnesses, and the briefs, I enter the following findings of fact and conclusions of law and recommend the entry of the following order. Findings of Fact /4/ 1. It is admitted that Respondent operates a field office in Toledo, Ohio, and that the Charging Party (also referred to herein as the Union) has been certified as the exclusive representative of Respondent's professional and non-professional employees at the Cleveland District Office and the Toledo field office, with some exceptions not here relevant, and including revenue agents in the Collection Taxpayer Service and Examination Division at Toledo. 2a. A National Agreement between the National Treasury Employees Union (NTEU) and the Internal Revenue Service became effective on January 28, 1981, to remain effective for four years. It covers the Cleveland District Office and Chapters 37, 44, 74 and 100 of NTEU's Joint Council. Chapter 44 represents the Toledo employees. b. Article 39, Section 3, paragraph A of the agreement provides as follows: The Employer will give the NTEU National President advance notice of any proposed changes in the conditions of employment of bargaining unit employees employment. Normally the Employer will provide three weeks notice of such changes and the Union will make any proposals it intends to make before the end of the notice period. The Employer will furnish notice to the National President either by certified mail or by had delivery. See Jt 1, page 41. If a proposed change is limited to one office, notice may be given to the local chapter president or joint council chairperson. See paragraph B of Section 3 of Article 39, ibid. 1981 Proposal 3. In 1981 Respondent developed a proposal "with respect to the remodeling and the renovation and the space reduction in the Toledo Post of duty" (TR 88). It involves moving all Toledo IRS operations from the third, fourth and sixth floor of the Federal Building to the fourth floor. Bargaining-unit employees (including revenue agents in the Examination Division and the Collection Taxpayer Service) work on the third and fourth floors. It involves a reduction of 4,600 square feet in the amount of space available. It involves replacement of existing furniture, including replacing individual desks with work tables, with two or three (and in one instance, four) employees assigned to one 4-by-8 foot table, called "Multiple Occupancy Work Stations" (MOWS). See Jt 7 and TR 42. The MOWS include lateral, two-drawer files placed behind the work tables, and one file for each employee at the table, to hold work materials and current files. It provides for a dropped, acoustical ceiling and a sound-masking system to counteract the noise level increase and "kind of put conversations in the background" (TR 46). The consolidation involves major structural changes and includes removal of walls, recarpeting and painting. Other Federal agencies (Immigration and Naturalization Service, Social Security Administration, and Farmers Loan Administration) will be required to vacate space on the fourth floor, in order for the consolidation of Respondent's Field Office to be realized. See Jt 8. 4. On March 31, 1981, Respondent's Chief of its Facilities Management Branch, John C. Reagan, notified the President of NTEU's Cleveland Joint Council, Marvin M. Jaffe, of the proposed changes and sent him a copy of the layout, which was introduced into evidence as Joint Exhibit 7. 5. On April 16, 1981, representatives of the Union and Respondent met to discuss the proposed changes. Among other matters, they discussed the layout, including each function having its own separate ceiling-high area; restroom facilities; the amount of desk/table-top space available to each employee, with one, two, or three per table; use of file tops for papers; division into smoking and nonsmoking areas; group identity being maintained by free-standing dividers or files as separators; each revenue representative having an individual, two-door lateral file to hold personal working materials and aids, and current files; group files and specialist files being in four-drawer laterals; size of current and proposed cubicles; the fact that the use of MOWS is conducive to "bull sessions;" and that "the specifications will call for a dropped acoustic ceiling and sound masking to reduce intelligibility (of nearby conversations) and therefore, distraction" (see Jt 6, page 2, and TR 30); the time frame for implementation being "pure speculation" but "anticipated anywhere from 18 to 36 months," because the proposal had to go to the Region for approval, then to the General Services Administration (GSA) for estimation, then back to Respondent for approval and go ahead; and then back to GSA for implementation; the fact that the space involved in the proposal would amount to a reduction of 4,600 over current space; and that the Union had until April 27, 1981, to request negotiations and present counter-proposals. There were no discussions on how Respondent planned to implement the renovation project, or that it would be done in phases, although Respondent contemplated that the overall plan would be implemented in "small implements at a time" (TR 95). 6a. On April 23, 1981, the Union wrote to the District Director, Cleveland, and called for negotiations concerning the proposed consolidation of the Toledo office. The Union's sole proposal was for the "maintenance of the status quo ante with respect to facilities and space in Toledo IRS." See R 4. The Union apparently did not understand the contract to require that all its proposals be made within 21 days, including those pertaining to the implementation of the proposed change and its adverse impact upon bargaining-unit employees See TR 32-33. b. The District Director replied, on April 29, that the "decision to renovate is not negotiable, but the impact on bargaining unit employees, and implementation of the decision, is negotiable." See R 6. However, he noted that such proposals had not been submitted by April 27; therefore, would be untimely under Article 39, Section 3, B.1of the National Agreement; and that he planned to proceed with the proposed renovation of the Toledo office. c. The Union filed an unfair labor practice charge over the matter. The charge was denied by the Authority's Regional Director, LeRoy Bradwish; and the Union did not appeal his decision. The basis for his decision was as follows: . . . the consolidation of the Internal Revenue Service Toledo office and the institution of the multiple occupancy work station concept are matters within the meaning of 5 U.S.C. 7106(b)(1) involving the technology, methods, and means of performing work. As such, no bargaining obligation on the substance of the decision was present unless the Charged Party elected to bargain. In this instance, the Charged Party made no such election to bargain. The investigation revealed that the exclusive representative chose to seek negotiations over the substance of management's decision rather than the impact and implementation. No proposals were submitted by the union within the mutually agreed-upon time frame. At no time did management fail or refuse to negotiate over the impact and implementation of the consolidation of the work space and the institution of the MOWS concept. It does not appear, therefore, that management's conduct is violative of 5 U.S.C. 7116(a) Subsections (1) and (5). Internal Revenue Service Cleveland District, Cleveland, Ohio and National Treasury Employees Union and Cleveland Joint Counsel, Case No. 5-CA-1231 (September 22, 1981). 7a. The 1981 proposal has not yet been implemented. When the proposal was presented to the Union, in 1981, it was not anticipated that final funding clearance would not be obtained until July 1983. As of the date of the hearing, implementation of the 1981 proposal was still nine months to a year away, e.g. perhaps not until January 1985. b. In approximately mid-1982, in order to get the project funded, Respondent decided "to drop" the acoustical ceiling and sound-masking system. See TR 100. The Union was never informed of those changes in the 1981 proposal, and apparently first learned of them at the hearing. c. The furniture proposed for the renovation and consolidation was purchased, in 1982. 8a. Respondent "originally planned to move in all the new furniture when the space redesign was completed." See TR 106-107. Respondent did not anticipate, in 1982, that it would be placing the furniture, for the 1981 proposal, before it had completed the construction phase of the program for renovation. b. By the summer of 1983, 95 percent of the furniture had been purchased /5/ and, to relieve itself of the expense of storage, Respondent decided to proceed with the implementation of the 1981 proposal, "at least the furniture placement" (TR 93), even though none of the architectural modifications had been done to consolidate all operations on the fourth floor. 1983 proposal 9a. As of June 29, 1983, Respondent had readied a blueprint labeled "Toledo Furniture Placement." See Jt 8. By this time, there were fewer employees, in the Collection Division, than there had been when representatives of the Union and Respondent discussed the 1981 blueprint. The Collection Division went from a two-group to a one-group staff. b. On July 5 or 6, 1983, the Union was invited to look at the new blueprint. The blueprint describes "new furniture placement that ha(d) not existed in the past" (TR 97), on the third and fourth floors of the Federal Building, in Toledo. The physical restraints (ceiling-high partitions and actual floor space occupied) are the same as they have been since 1972. The blueprint provides for three to four employees to be seated at work tables, on the third and fourth floors of the Federal Building in Toledo, with four per table being the more usual setup, and with file cabinets being replaced by lateral ones, to complete the MOWS concept. 10. On July 14, 1983, representatives of the Union and Respondent met, in Toledo, to review the proposed changes. A principle change was to replace the individual desks of the revenue agents with work tables. Also, the files presently in use by the agents were to be moved out and replaced with two-drawer, lateral files into which the agents would put the material currently in their desks, including case files, some of which are "voluminous" (TR 55). The Union expressed concerns about the amount of cubic feet the filing cabinets would hold and the square footage of work areas, per employee, on the table, the "kind of uniform setup" having gone to four employees per table (TR 42 and see Jt 8). 11a. On July 29, 1983, the Union wrote to Respondent, requesting negotiations regarding the proposed physical changes in the Toledo office and attaching the following proposals: 1. Where more than one individual is assigned to a file cabinet, each will have a personal key. 2. There will be no decrease in number of telephones nor tables for telephones, calculators, and paper cutters. 3. There will be no decrease in bookcases either in the library or in the sections of the office, each one being no less than 3 sections high. Current count in examination section: Library 2 Group 1301 2 Group 1122 2 Group 1123 2 Group 1124 1 Excise tax 1 Estate & Gift 1 EPEO 1 4. We oppose the exchanging of desks for tables. /6/ 5. Since our request to keep the desks is not being honored and we are told the tables will be 4' x 8', we want no more than 2 individuals to be assigned to a table. That means that if there are 10 people assigned to a group, there will be no fewer than 5 only 4' x 8' tables on which they can work. 6. There will be no decrease in the number of forms cabinets for both collection and examination sections. Current count in examination section: Joint for groups 1122 & 1123 1 Group 1301 1 Estate & Gift 1 Group 1124 1 7. In Collection Division TDA files will be locked up in separate 7-point protection files and each revenue officer will have two file drawers, at least. 8. Each employee be furnished a tray to hold pencils, paper clips, rubber bands, etc, that have previously been kept in center drawer of desk. 9. Estate & Gift Tax section to be furnished 2 file cabinets as per current status to store copies of WALL STREET JOURNAL; also at least one file cabinet to store voluminous records furnished by taxpayers in regard to cases under examination. 10. All grade 11 Internal Revenue Agents with 4 or more years service and all grade 12 and 13 agents in groups 1122, 1123 and 1124 to be furnished the equivalent of one file drawer in current type cabinets in addition to the two drawers that have been promised in the new type cabinets that are said to have drawers measuring 18" deep x 42" long x about 12" high. This is needed because their cases take up more space. It is not unusual for one case to require a whole file drawer when it has been developed to the point where Revenue Agent's Report can be written. Extra file cabinet is needed for use in those groups that are involved in projects-- such as W-4 project in group 1124 at present. 11. Accommodations to be made so that smokers and non-smokers will not be sitting at the same tables. 12. Sufficient file cabinets will be furnished the large case group, Group 1301, to put all the prior year case files in. 13. The agreements reached here carry over to time when all operations are on the fourth floor. See Jt 3. The then President of the Joint Counsel, Marvin Jaffe, testified that the same proposals could have been made in 1981. See TR 32-33. b. On August 26, 1983, Respondent responded, by letter, to the Union's proposals. Respondent stated that none of the proposals dealt strictly with any issue "related solely to the placement of the furniture in the existing space," but, instead, dealt with matters which could have been, but were not proposed during "the 21-calendar-day period following the March 31, 1981, notification about the Toledo renovations." See Jt 5. Respondent, consequently, took the position that it had no obligation to bargain over them, and did not elect to do so. 12. On or about August 26, 1983, Respondent announced the proposed changes to the employees involved and told them to empty all materials in their desks and put them into boxes, in anticipation of removal of their desks over the weekend. 13. When the employees came to work the following Monday, August 29, 1983, they found 4 x 8 foot tables in place of their desks, room dividers where there were none before, and some new chairs. Effect of changes on revenue agents 14. Lack of an individual desk and the switch to multiple occupancy work tables has had a "demoralizing" effect on employees, who now face working in a "very, very cramped situation." See TR 38 and 67. Some specific effects established are as follows: a. The work station of each revenue agent is now approximately one-third of the size enjoyed before the switch to tables, in the Collection Division. In the Examination Division, there is a decrease of 10.6 square feet, per agent, who now have a working space that is 4 feet wide and 2 feet deep. It is management's position that the revenue agents are out in the field, most of the time and therefore, all four assigned to a table are not in at the same time. In fact, about 50 percent of the agents' time is spent in the office, depending on the type of cases assigned to them. The agents come into the office every day to take care of their records. There are times when all four agents assigned to a table are in the office at the same time. On the last day of each month, ordinarily all agents are in the office, because monthly reports must be turned in at that time. b. Their files are now kept behind them, in cabinets, so that they must pivot instead of reaching down to obtain the files. c. There has been a "significant increase in conversation," and therefore in the noise level, which is "distracting," now that the revenue agents must share a work table with coworkers. See TR 39. While one can ask a coworker to "please be quiet," some "loquacious" ones "you can never shut up." See TR 61 and 72. d. It takes more time to put case files together because, having spread them out on a table, they must be moved around, continually, as more agents join the assigned table. This cuts into the production time of the agents, who are always being told by management to cut down on hours per case. This problem, together with the distraction from having to share a work station with others, leads to performance deficiencies and grievances. e. Smoking by coworkers seated around a table aggravates those who are bothered by inhaling the smoke of others. f. Safety problems have been created because the agents use small electric calculators, wires from which must cross the floor to reach wall receptacles from the tables, which are in the center of the rooms. When individual desks were available to the agents, the desks were right next to the wall receptacles. (The Union did not anticipate this problem when it made its proposals in 1983). g. Agents are responsible for the original tax returns in the case files assigned to them. The new cabinets provided for their storage are locked by keys and can be opened with a letter opener without leaving any indication of having been opened. The removed file cabinets had combination locks which were more secure. (At the time the Union made its 1983 proposals, it was unaware of the type of lock on the cabinets to be installed.) h. Agents work with a great volume of paper. Having so many agents working at one table can easily result in one agent's papers going out in another agent's briefcase. i. Agents have a less convenient place to put their pencils, pens, papers, forms, and case and reference materials. Differences in the 1981 and 1983 proposals and the 1983 implementation 15. Basically the 1981 plan consolidated the office into a smaller area than previously, and all on one floor. The 1983 plan does not do that. It leaves the bargaining-unit employees on the same two floors they have been occupying, but with a different physical layout. 16. The employee count per table increased, from generally two to three, in 1981, to three and, generally four, in 1983. 17. None of the structural changes proposed in 1981 were effected in 1983, when the employees were switched from individual desks, credenzas and file cabinets to the MOW concept. 18. All the bookcases planned for had not been received and placed at the time of the implementation. 19. Respondent's agent in charge of labor relations for the Cleveland District testified that Respondent would go back to the Union and ask for additional proposals, if a change is made in the 1981 plan that would have "a substantial adverse impact on the bargaining unit" (TR 119). Discussion and Conclusions The General Counsel has established, by a preponderance of the evidence, /7/ that Respondent has violated and is violating 5 U.S.C. 7116(a)(1) and (5), as alleged, by refusing to bargain over the impact and implementation of changes made in the work areas of bargaining-unit employees, on August 26, 1983, namely the replacement of individual desks with multiple occupancy work stations (MOWS) consisting of work tables and lateral file cabinets. /8/ Respondent admits that the Union requested bargaining and made proposals over the changes, and that it refused to bargain concerning them. See its answer (GC 1(g)) to paragraph V of the complaint (GC 1(c)). Under the contract between the parties, the Union's proposals were made in a timely fashion. See findings 2b, 10 and 11a. Except for one proposal (#4, stipulated to be non-negotiable) and #13 (to be discussed infra), no issue is raised as to the negotiability of the rest of the Union's 1983 proposals. They are of the type held to be bargainable by the Authority in cases involving open office design. See American Federation of State, County and Municipal Employees, AFL-CIO, Locals 2477 et al. and Library of Congress, 7 FLRA No. 89, 7 FLRA 578, 581-584(1982), holding negotiable proposals as to book shelf and file cabinet space, office size, and partitions to insure quiet and efficient working conditions; and National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, Central Region, 7 FLRA No. 38, 8 FLRA 197(1982), holding negotiable proposals as to partitions, sound-deadening or absorbing drapes, a sound system of white noise, acoustical carpeting, desk lamps, and meeting locations. The adverse impact of the changes upon the bargaining-unit was, in toto, significant. See finding 14, above, setting forth the demoralizing effect of the MOWS concept on the revenue agents, and the difficulties and discomfort that the concept imposes. Under all these circumstances, the failure of Respondent to bargain was an unfair labor practice, under Sections 7116(a)(1) and (5) of the Statute. See, e.g. U.S. Government Printing Office and Joint Council of Unions, GPO, 13 FLRA No. 39, 13 FLRA 203, 205(1983). Respondent argues first that the Union waived its right to bargain over anything except the placement of the furniture, and that none of the Union's proposals concern such placement. See RBr 7-12. This argument rests on the proposition that "the only change at the Toledo post-of-duty which occurred in August, 1983, was the exchange of the existing furniture with the multiple occupancy work stations which had been presented to the charging party on March 31, 1981" and, as to which, the Union was found to have waived its right to bargain impact-and-implementation matters. See RBr 7. Waivers of bargaining rights are not to be lightly inferred. See, e.g. Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 5 FLRA No. 2, 5 FLRA 9(1981). In this case, the Union, in 1981, operating under a newly concluded collective bargaining agreement, apparently sandbagged itself when it failed to offer impact-and-implementation bargaining proposals, within the contractually agreed-upon 21 days, because it was proposing that no change at all be made. See finding 6a, above. Respondent assisted the Union in this folly by not rejecting the Union's no-change-at-all proposal until after passage of the 21-day period in which the Union could, under the contract, have been impact and implementation proposals. See findings 4 and 6b, above. By this seeming ineptness in bargaining under its new contract in 1981, however, the Union did not waive its right to bargain over subsequent changes made in the 1981 proposal. Even Respondent's agent in charge of its labor relations in Toledo recognizes this, insofar as changes have "a substantial adverse impact upon the bargaining unit." See finding 19, above. On this record, it is concluded that changes of substance did occur when Respondent proposed to and did install the furniture in 1983. The main change is management's decision to install the MOWS system before the structural modifications had been finished (see finding 8a, above), one of which was the installation of acoustical ceilings and another was the installation of a sound-masking system-- features obviously designed to ameliorate the higher noise levels and distraction associated with crowding numbers of employees around shared work tables, in replacement of the use of individual desks. These features were dropped entirely, in 1982, without any notice to the Union. /9/ See finding 7b, above. The adverse effects of this change were aggravated by the change increasing the numbers of employees at many of the tables, even by one, foreseeably resulting in more distraction and noise from conversational chatter, more problems for those bothered by the smoke of co-workers, and more problems associated with cramped work space, such as having the work papers of one agent go out in another's briefcase. Respondent's argument that the revenue agents are out in the field, much of the time and, when in the office, can use other MOWS than those assigned to them (RBr 16) is not convincing. The facts establish that agents spend 50 percent of the time in the office when working on some types of cases, and are all generally in the office at the end of the month. See finding 14a, above. Also, shifting to other than their assigned work tables is no answer, because this would place them at a distance from the file cabinets in which their work materials and current files are kept. Other problems faced by the agents is a change to an inadequate locking device for the new file cabinets where they must store original tax returns, for which they are responsible. The Union was apparently not made aware of this difference in locking devices, in 1981. See finding 14g, above. In toto, these changes in management's proposals in 1981 reactivated the Union's right to bargain over impact and implementation of them. Any 1981 waiver by the Union, particularly one which was the seeming result of inexperience in bargaining under a new contract and was not consciously made, did not carry over to the changed proposal partially implemented by Respondent, in 1983. Respondent's second argument is that the changes implemented in 1983 are not "materially different" from those proposed to the Union in 1983. See RBr 12-20. For reasons already discussed, this argument is rejected. Respondent argues that the placement of the MOWSs in the existing office space at Toledo is not a "material change" in the terms and conditions of employment, relying on Internal Revenue Service v. Federal Labor Relations Authority, 717 F.2d 1174(7th Cir., 1983), hereinafter referred to as the "IRS, Chicago" decision. The IRS, Chicago decision was written by Judge Bauer, with Judge Flaum concurring and Judge Fairchild dissenting. In it, the Court denied the enforcement of a cease-and-desist order of this Authority and set aside the Authority's decision and order in 9 FLRA No. 93, 9 FLRA 648(1982). The facts of that case involved the modification of existing office space design in order to accommodate 12 additional employees. The Union requested not only impact-and-implementation bargaining, but also bargaining as to the substance of the decision as to the office space layout. The Union proposals would have required Respondent in that case to construct private offices and to rectify existing ventilation problems. Respondent argued that the proposals on private offices conflicted with its decision to utilize an open space approach to office design and, therefore, interfered with management's choice of the technology of performing its work under Section 7106(b)(1) of the Statute. As to the ventilation problem, Respondent argued that the matter was outside its control because GSA had responsibility for that matter. The Authority ruled that Respondent "had not established that an open space approach to office design ha(d) any technological relationship to accomplishing or furthering the performance of its work." See 9 FLRA at 650-651. As to the ventilation problem, the Authority ruled that it clearly involved a condition of employment, and that the Respondent had an obligation to bargain concerning it, to the extent that it had any discretion thereto, even if its discretion was limited to asking GSA to correct it. See 9 FLRA at 651. Therefore, the Authority ordered Respondent to bargain concerning the changes. Judge Bauer declined to decide the issue raised by Section 7106(b)(1) and wrote his decision on the basis that the changes in conditions of employment were "minor" and did not "trigger the duty to negotiate." See 717 F.2d at 1177. Judge Flaum, concurred, but on the basis that the Authority's decision was "inconsistent with the requirement of effective and efficient government," in accordance with Section 7101(b) of the Statute which states that provisions of the Statute should be interpreted in a manner consistent with effective and efficient government. Ibid. Judge Fairchild, dissenting, found that the office alterations had a "substantial impact on employees" and announced himself unable to hold that the Authority's resolution was unreasonable, arbitrary, capacious or otherwise not in accordance with law." 717 F.2d at 1180. Since the Seventh Circuit's decision, the Authority has not indicated any change in its reasoning. The Toledo office of Respondent does not fall under the jurisdiciton of the Seventh Circuit. And, in any event, I am constrained to follow the decisions of the Authority. Its decision, in the IRS, Chicago case, supports the conclusions reached herein. Respondent's last point, that the General Counsel has failed to prove its case by a "preponderance of the evidence" (RBr 22-25), has already been rejected and need not be further discussed. One point that is left for discussion is Union's proposal #13, that "the agreements reached here carry over to time when all operations are on the fourth floor." See finding 11a, above. The Union did sit on its rights to negotiate the impact and implementation of the fourth-floor plan, as shown in Joint Exhibit 7. On this record, the Respondent's agent for labor relations at the Toledo office acknowledged that Respondent would go back to the Union for additional proposals, if changes are made in the 1981 plan that would have a substantial adverse impact on the bargaining unit. See finding 19, above. Implementation of the 1981 plan, as set out in Joint Exhibit 7, was nine months to a year away, at the time of the hearing. Changes in numbers of employees to be accommodated on the fourth floor have occurred and more may occur, thus making management more amenable to fewer employees per table (proposal #5), but unwilling to maintain the same numbers of telephones, tables, calculators and paper cutters in current use by the agents (proposal #2). Also, a management decision to go ahead with the acoustical ceiling and sound-masking system may still be made. Also, changed circumstances involving the other agencies now occupying the fourth floor may render GSA unwilling to force their relocation to make room for Respondent as presently planned. In short, the Union's proposal #13 seems premature, at this time. The General Counsel seeks, as a remedy, an order requiring Respondent to bargain with the Union over its 1983 proposals, to give retroactive application to any agreement reached during negotiations, and to post an appropriate notice to employees advising them of these actions. The order to bargain and post are appropriate, and will be recommended. An order to give retroactive application to any agreements seems unnecessary to accord full relief, since none of the proposals made are possible of retroactive relief. See finding 11a, above. Counsel suggest none where this remedy would be necessary. Accordingly, retroactive application will not be recommended. Ultimate Findings and Recommended Order Respondent has committed and is committing unfair labor practices, as alleged in the complaint, in violation of 5 U.S.C. 7116(a)(1) and (5). Accordingly, and pursuant to 5 U.S.C. 7118 and 5 CFR 2423.26, it is hereby ordered that the Respondent shall: 1. Cease and desist from: (a) Refusing or failing to bargain with the Charging Party over the impact and implementation of the changes made in the work areas, in the Toledo Field Office on August 29, 1983, to the extent consistent with law and regulation. (b) In any like or related manner, refusing or failing to bargain with the Charging Party. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Services Labor-Management Relations Statute: (a) Upon request, and to the extent consistent with law and regulation, bargain with the Charging Party over the impact and implementation of the changes made in the work areas of the Toledo Field Office on August 29, 1983. (b) Post at its Toledo Field Office, copies of the attached Notice. Copies of said Notice, to be furnished by the Regional Director for Region V of the Authority, shall be signed by an appropriate official of Respondent and posted by that official immediately upon receipt, and remain posted for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said Notices are not altered, defaced, or covered by any other material. (c) Notify the Authority's Regional Director for Region V, in writing, within 30 days from the date of this Order, as to what steps it has taken to comply herewith. ISABELLE R. CAPPELLO Administrative Law Judge Dated: June 11, 1984 Washington, D.C. NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE We hereby notify our employees that: WE WILL NOT refuse or fail to bargain with the National Treasury Employees Union, Cleveland Joint Council over the impact and implementation of the changes made in the work areas of the Toledo Field Office on August 29, 1983, to the extent consistent with law and regulation. WE WILL NOT in any like or related manner refuse to bargain with the Cleveland Joint Council. WE WILL, upon request, bargain with the Cleveland Joint Council over the impact and implementation of the changes made in the work areas of the Toledo Field Office on August 29, 1983, to the extent consistent with law and regulation. (Agency or Activity) Dated: By: (Signature) 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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region V, whose address is 175 W. Jackson Blvd., Suite A-1359, Chicago, IL 60604, and whose telephone number is 312-353-6306. --------------- FOOTNOTES$ --------------- /1/ See Office of the Federal Register, National Archives and Records Service, General Services Administration, The United States Government Manual 1984/85, at 446 (1985). /2/ Additionally, Member McGinnis indicated in a separate concurring opinion that he would consider, in determining de minimis issues, when the implementation of a change would involve or adversely affect unit employees in assessing the totality of the facts and circumstances presented. /3/ Section 7116 of the Statute provides, in pertinent part, that: (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; (or) . . . (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter. . . . /4/ The following abbreviations will be used herein: "TR" refers to the transcript; "Jt" refers to the Joint Exhibits; "R" refers to the Respondent's Exhibits; "GC" refers to the General Counsel's Exhibits; "GCBr" refers to the brief of the General Counsel; "RBr" to the brief of Respondent; and "CPBr" to the brief of the Charging Party. /5/ Coatracks for customers, and some bookcases had not yet been received, at the time the decision to place the furniture was made and implemented. /6/ It was stipulated, at the hearing, that Proposal No. 4 addressed the decision to redesign and, as such, was non-negotiable. See TR 126-127 and GCBr 10. /7/ This is the statutory burden of proof. See 5 U.S.C. 7118(a)(7). /8/ The duty to bargain over the impact and implementation of changes in working conditions is mandated by Section 7106 of the Statute, which sets forth "Management Rights" and provides, in subparts (b)(2) and (3) as follows: (b) Nothing in this section shall preclude any agency and any labor organization from negotiating- . . . (2) procedures which management officials of the agency will observe in exercising any authority under this section; or (3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials. /9/ Respondent's argument, at pages 18-19 of its brief, that this is a technological change about which it need not bargain, under Section 7106(b)(1), may be sustainable; but that issue is not decided here. What is decided here is that the change triggered anew the right of the Union to bargain over the impact of the change-- for example, seating fewer employees at the table in order to compensate for the lack of these ameliorating features. See the Union's proposal #5, in finding 11a, above. Respondent further argues that the Union has not right to bargain until later, when it begins to make the structural changes, sometime in the next nine months to a year. See RBr 19. This argument ignores the fact that, for this period, revenue agents are now being crowded, four to a table, in some instances and at some times, without the benefit of any of the structural proposals made in 1981.