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U.S. Federal Labor Relations Authority

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20:0403(43)CA - Treasury, IRS and ITS Cleveland, Ohio District Office and NTEU and NTEU Cleveland Joint Council -- 1985 FLRAdec CA

[ v20 p403 ]
The decision of the Authority follows:

 20 FLRA No. 43
 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
    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
    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.
    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
                                       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
    Administrative Law Judge
    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
          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
    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
    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
          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
    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
    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
    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
    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
    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
          (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
                   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
    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:
    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
    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
    /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
    /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.