[ v20 p644 ]
The decision of the Authority follows:
20 FLRA No. 76 ENVIRONMENTAL PROTECTION AGENCY AND ENVIRONMENTAL PROTECTION AGENCY REGION II Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Case No. 2-CA-20488 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent, Environmental Protection Agency and Environmental Protection Agency, Region II, 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 and the General Counsel filed exceptions to the Judge's Decision and the Respondent filed an opposition to the General Counsel's exceptions. /1/ 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 recommended Order only to the extent consistent herewith. The Judge concluded that the Respondent violated section 7116(a)(1) and (5) of the Statute when it unilaterally relocated unit employees of the Water Resources Section, Technical Resources Branch, Water Division, and refused, when requested, to bargain on the procedures to be used in the implementation of the change and any appropriate arrangements for employees adversely affected by such change. In this regard, the Judge concluded that the relocation resulted in more than a de minimis impact upon bargaining unit employees. The Respondent excepted, in part, to the Judge's determination that the change resulted in more than de minimis impact. The General Counsel's exceptions were limited to the Judge's recommended remedy. The record reflects that the American Federation of Government Employees, AFL-CIO, during the time period in question, exclusively represented a nationwide consolidated unit of professional employees and a nationwide consolidated unit of nonprofessional employees, which included the employees of the Water Resources Section, Technical Resources Branch, Water Division, Region II, involved herein. The record reveals that the Environmental Protection Agency is divided into 10 regions, each of which is divided into five divisions which are further divided into branches and sections within the branches. With respect to the relocation, the record establishes that on or about June 24, 1984, approximately 12 employees within a section of the Water Division were moved from one area on the eighth floor about 50 feet across the hall to another area. In part, the change resulted in less individual office and storage space in a noisier location. The Authority has previously held that "where an agency in exercising a management right under section 7106 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." (Footnote omitted.) 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." The Authority has also held, subsequent to the issuance of the Judge's decision herein, that in determining whether the impact or reasonably foreseeable impact of the exercise of a management right on bargaining unit employees 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(a) of the Statute gives rise to a duty to bargain 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. Turning to the instant case, the Authority finds, in disagreement with the Judge's conclusion, and based upon the totality of the facts and circumstances presented, that the impact or reasonably foreseeable impact of the relocation on unit employees' conditions of employment was no more than de minimis. Accordingly, it follows that the Respondent was under no obligation to afford the Charging Party an opportunity to bargain pursuant to section 7106(b)(2) and (3) of the Statute concerning the procedures to be observed in implementing the change as well as on appropriate arrangements for employees adversely affected by the change. In reaching this result, the Authority notes with respect to the nature of the change that, although the relocation resulted in less office and storage space in a noisier location, only 12 employees were relocated on the same floor approximately 50 feet away. /3/ Moreover, it is also noted that the affected employees remained in the same section and division and maintained their grade levels, pay rates and hours of work. Although the duration of the change was permanent and its impact on unit employees was immediate, the Authority further notes that the relocation affected only 12 individuals in one section of one division who are part of a nationwide consolidated unit. Finally, the record does not show that the parties have established, through negotiations or past practice, procedures and appropriate arrangements concerning analogous changes in the past. /4/ Based on the totality of the facts and circumstances presented, and noting particularly the limited nature of the change, the small number of employees affected relative to the size of the bargaining unit, and the lack of any demonstrated bargaining history or past practice of handling similar or analogous changes, the Authority concludes that the impact or reasonably foreseeable impact of the relocation was no more than de minimis. Accordingly, the Respondent was under no obligation to negotiate with the Charging Party pursuant to section 7106(b)(2) and (3) of the Statute. /5/ ORDER IT IS ORDERED that the complaint in Case No. 2-CA-20488 be, and it hereby is, dismissed. Issued, Washington, D.C., November 13, 1985 (s)--- Henry B. Frazier III, Acting Chairman (s)--- William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Respondent urges the Authority to dismiss the General Counsel's exceptions on the basis of an improper citation to the Authority's Rules and Regulations. The Respondent's motion is denied. Notwithstanding the incorrect regulatory citation by the General Counsel, the documents submitted were clearly captioned and identified as exceptions to the Administrative Law Judge's Decision in Case No. 2-CA-20488 and properly constituted an exception to the Administrative Law Judge's Decision filed with the Authority under section 2433.26(c) of the Authority's Rules and Regulations. /2/ Additionally, Member McGinnis indicated in a separate concurring opinion that he would also 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/ See U.S. Army Reserve Components, Personnel and Administration Center, St. Louis, Missouri, 20 FLRA No. 12 (1985); Cf. Social Security Administration, Office of Hearings and Appeals, Region II New York, New York, 19 FLRA No. 47 (1985), where the whole Regional Office was moved a distance of four or five miles. /4/ Although the Judge found that parties had executed a memorandum of understanding almost two years prior to the events herein which provided generally for "local level impact/implementation bargaining," such agreement did not specifically address changes analogous to those involved in this case and the record contains no evidence that bargaining has ever occurred thereunder or otherwise with regard to analogous changes. Additionally, the Authority notes that a failure to abide by the parties' memorandum of understanding would constitute a contract violation cognizable under an applicable negotiated grievance procedure. /5/ In view of the conclusion that the impact or reasonably foreseeable impact of the relocation on unit employees was no more than de minimis, the Authority does not pass on the Judge's negotiability findings. -------------------- ALJ$ DECISION FOLLOWS -------------------- ENVIRONMENTAL PROTECTION AGENCY AND ENVIRONMENTAL PROTECTION AGENCY, REGION II Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Andrew J. Moran, Esq For the Respondent Allan W. Stadtmauer, Esq. Deborah A. Krane For the General Counsel Joseph F. Musil, Jr. For the Charging Party Before: WILLIAM NAIMARK Administrative Law Judge DECISION Statement of the Case Pursuant to a Complaint and Notice of Hearing issued on December 30, 1982 by the Regional Director of the Federal Labor Relations Authority, New York, NY, a hearing was held before the undersigned on April 13, 1983 at New York, NY. This case arises under the Federal Service Labor-Management Relations Statute (herein called the Statute). It is based on a second amended charge filed on December 9, 1982 by the American Federation of Government Employees, National EPA Council and Local 3911, (herein collectively called the Union) against Environmental Protection Agency and Environmental Protection Agency, Region 11 (herein collectively called Respondent). /1/ The Complaint alleged, in substance, that since June 4, 1982 Respondent refused to negotiate re the substance, Impact and implementation of its decision to relocate and reconfigure unit employees of the Water Resources Section, Technical Resources Branch, Water Division; that the decision to so relocate and reconfigure unit employees was implemented on June 24, 1982 without affording the Union an opportunity to bargain thereon - all in violation of Sections 7116(a)(1) and (5) of the Statute. Respondent's Answer, dated January 18, 1983, denied the essential allegations of the Complaint, as aforesaid, as well as the commission of any unfair labor practices. A Motion to Dismiss the Complaint, dated March 10, 1983, was filed by Respondent Environmental Protection Agency on the ground that the acts are alleged to have been committed by employees of the Activity, Region II. It averred that the agency is not a proper respondent solely because it is the activity's parent entity. General Counsel filed its Opposition to Motion to Dismiss, dated April 7, 1983. In an order dated April 7, 1983, the Regional Director, Region 11, New York, NY referred the aforesaid motion to the Chief Administrative Law Judge. Since no ruling was made thereon, the Respondent Agency renewed its motion at the hearing. The undersigned's determination of the motion is set forth infra. All parties were represented at the hearing. Each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed with the undersigned which have been duly considered. Upon the entire record herein, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing, 1 make the following findings and conclusions: Findings of Fact 1. At all times material herein the American Federation of Government Employees, AFL-CIO has been, and still is, the exclusive representative of a nationwide consolidated unit of professional employees and a nationwide consolidated unit of non-professional employees who are employed by the Environmental Protection Agency (EPA) including those employed by Region II. 2. At all times material herein the American Federation of Government Employees, AFL-CIO, has delegated the National EPA Council (AFGE Council No. 238) as its agent for the purpose of negotiating all matters which are national in scope and appropriate under the Statute, including the negotiation of a nationwide master agreement. 3. At all times material herein, Joseph F. Musil, Jr., as Acting President of Local 3911, has been the delegated agent of the National EPA Council on all matters involving bargaining unit employees at EPA Region 11. 4. No collective bargaining agreement exists between the parties at either the national or local level. 5. A memorandum of understanding between the American Federation of Government Employees, AFL-CIO, and the Environmental Protection Agency was executed on August 21, 1980. It provided for the delegation by each party of authority and responsibility to their duly authorized representative with regard to local level impact/implementation bargaining. The Respondent's agent for such bargaining in Region II, as delegated, is Eugene Viti, Chief of Personnel and Organization. Its agent for substantive bargaining as delegated for national and local matters, is Thorne Chambers, Labor Relations Officer. 6. EPA is divided into 10 regions and certain field offices. Region 11, which has a regional administrator, is composed of five divisions: water, air, management, surveillance, and regional counsel. Each division has branches consisting of a branch chief, and 15-20 employees. A branch is divided into sections and the section has an individual supervisor. 7. Just prior to June 2, 1982, /2/ the Director of the Water Management Division, William Muszynski, told Viti that his division was planning a relocation within the division itself. Viti advised the director he should contact Musil and go over the plans with the union representative as well as elicit any comments re the move. 8. On June 2 Musil talked to Muszynski and learned that certain employees would have their work areas relocated. No details re the move were related to the Union representative, /3/ except that It would involve relocating some unit employees in the Water Resources Section, Technical Resources Branch, Water Division from the eighth floor to another area. 9. Upon learning from several employees that a relocation was in the offering, Musil wrote a letter on June 4 to Viti. The union representative stated therein that the proposed relocation was a substantive change in working conditions; that such move could have a potential effect upon the health and productivity of employees if certain conditions, as lighting, office space, ventilation and layout, are not taken Into consideration. Musil requested negotiations to address procedures, "i.e. who gets what window offices - by seniority or grade - and such other items as minimum areas, lighting, ventilation, safety corridors, etc." Further, he sought to discuss remedies for adversely affected employees. 10. No response was made by Viti or any other management representative to this request to bargain. Viti testified he did not reply since nothing specific was mentioned by Musil no - proposals over which the letter wanted to negotiate and no impact demonstrated on the employees. Viti testified, further, that the letter from Musil did not indicate who was bothered by the lighting or other conditions; that no particular instances of Impact were recited by the Union official. 11. On or about June 24 approximately 12 employees in the Water Division were moved from one area on the eighth floor about 50 feet across the hall to another area. The move was impelled by a need to provide more space for the mailroom and relocate from the 10th floor to the 8th floor. Record facts reflect that at the old location the offices were situated along the outer side of three parts of a rectangle. It was an interior section on the floor without windows. The secretaries' desks were in the center of the room, and the offices of the other employees were in the periphery of the room. The area was somewhat secluded with 2-3 doors to enter and exit therefrom. Large bookshelves in each office were utilized to store papers and documents, and some offices had file cabinets, tables and a credenza. Little noise was present at the old location due to its relative isolation. 12. Individual offices at the new quarters are two-thirds the size of the former ones. In some instances only one exit is available to leave the area unless an employee goes through another office to do so. Further, exiting can be impeded since the exit is on the other side of the two desks reserved for secretaries. Less space is available in each office presently for storing data or documents of the Water Resources Section due to the somewhat cramped conditions. Record facts reveal there is much more noise at the new location due to the passing of people throughout the corridor, the use of typewriters and ringing of telephones. Employee Kathleen Chojnowski testified she finds it necessary, on occasion, to visit the 10th floor library to write because of the high noise level. Some of the new offices are equipped with windows, and thus lighting Is deemed equally as good as previously. In respect to lighting, it appears that this may have resulted in an improvement as a result of the move. Ventilation problems are common to both areas: heating irregularities at the former location and air conditioning difficulties at the new one. Conclusions I. Procedural Matters The Motion to Dismiss as to Respondent Agency is predicated on the contention that such entity undertook no action in respect to the relocation. Since, moreover, none of its agents was involved in the decision, the agency may not be held responsible for the conduct of the Activity. Cases cited in support of that position were U.S. Environmental Protection Agency, Washington, DC and U.S. Environmental Protection Agency, Region IV, Atlanta, Georgia, 10 FLRA No. 30 (1982); Department of the Interior, Water and Power Resources Section, Grand Coulee Project, Grand Coulee, Washington, 9 FLRA No. 46 (1982). Both of the cited cases involved situations where the activity had no choice but to follow the directions of the parent agency. In each instance recognition of the bargaining agent existed at the local level. Moreover, the issue concerned the responsibility of the activity. In view of the fact that the latter's acts were deemed ministerial in nature, the Authority concluded the Activity did not commit an unfair labor practice. Neither case is opposite herein. Recognition was at the national level in the case at bar and the obligation to bargain existed thereat. Despite the fact that the parties, in their memorandum of understanding executed on August 21, 1980, authorized negotiations at the local level, the doctrine of respondent superior would be applicable herein. Thus, even though impact-implementation bargaining may occur at the sub-level, the Activity (Region II) continues to act as an agent for the parent EPA. Accordingly, the actions of local management are binding upon the Agency. See Department of Health and Human Services Social Security Administration, Office of Program Operations & Field Operations, Sutter District Office, San Francisco, California, 5 FLRA No. 63 (footnote 2) (1981). The Motion to Dismiss as to Respondent Agency is denied. II. Alleged Unfair Labor Practice General Counsel concedes that the decision to relocate the employees on the eighth floor was not negotiable. However, it contends that management should have negotiated on the impact and implementation thereof. In this respect, General Counsel insists Respondent was obligated to respond to the Union's request to negotiate the effects of the relocation upon employees; that, prior to implementation of the move, Respondent was required to afford the Union an opportunity to bargain concerning its impact and implementation. Further, such substantive matters as lighting, ventilation, noise levels and fire exits should have been discussed with the bargaining agent. Unless otherwise excused, the Respondent herein had the obligation to respond when the Union herein requested on June 4 that the employer negotiate the contemplated relocation of the employees on the eighth floor. The term "collective bargaining", as set forth in Section 7103(12) of the Statute requires that the agency - as well as the exclusive representative - consult and bargain re "working conditions". The latter term would certainly embrace worksites and such matters as office space, security, ventilation and noise levels. Upon reviewing the record, as well as the contentions of the Respondent, I am persuaded that no factors existed which warranted the failure or refusal to reply to the Union's request to bargain. While recognition of the Union herein was granted at the national level by the parent agency, local representatives were granted authority to engage in impact and implementation bargaining re local level matters. Such delegation calls upon the Respondent Activity to respond to the Union's request to negotiate. The Authority has determined that parties may, as occurred herein, authorize negotiations at a sub-level. See Social Security Administration, Mid-American Program Service Center, Kansas City, Missouri, 10 FLRA No. 4 (1982). Thus, Respondent Activity in keeping with the memorandum of understanding between the parties and the national level, was obliged to negotiate with the Union re the impact and implementation of any changes in working conditions. In its brief Respondent asserts as a defense that the Union never followed up on its initial request to bargain; that no proposals were submitted, and that it was logical for management to conclude Local 3911 did not wish to pursue negotiations. These assertions are rejected. The June 4 request to negotiate was quite specific in respect to the concerns of the Union. Musil adverted to "items as minimum area, lighting, ventilation, safety corridors, etc." which the Union felt impacted upon employees. He referred to "relocation procedures, i.e. who gets what window offices - by seniority or grade". It does not lie with Respondents to maintain that the Activity was unaware of the Union's desires in respect to negotiation. The items, as set forth in the request to bargain, were in sufficient detail to appraise the employer of the possible impact upon employees. Although management argues no follow-up was made by the Union alter the written bargaining demand, I am not persuaded that the employer was thus free to ignore the request to negotiate. In support of its position in this respect, Respondent cite the case of Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 7 FLRA No. 65 (1981). However, that case is distinguishable from the one at bar. In the cited case the agency did not deny its obligation to bargain over certain changes. Moreover, it attempted to locate a proper representative of the union but none was readily identified. The Authority concluded that any delays were not attributable to the employer, and that the latter evidenced no reluctance to meet and discuss the changes. Thus, the failure of the union to do anything after it request to bargain was significant under those circumstances. In the instant matter the employer has insisted it had no obligation to bargain re the relocation. Further, its failure to reply to the request was not based on any misunderstanding of the Union's demands. Nor was it a result of being unable to contact a proper union representative. While Respondent may argue that the Union should have mentioned the matter again, during its meeting with management, any failure to do so was not tantamount to the Union's dropping its demands. Management was not entitled, in my opinion, to conclude that the Union did not wish to pursue negotiations. The bargaining agent's actions cannot be construed as a waiver of its demands. A waiver must, as the Authority has declared, be clear and unmistakable, and no such expression was made herein by the Union. Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA No. 2 (1981). It is stoutly contended that the relocation of the 12 employees across the hall to new quarters did not have a significant impact upon the unit employees. Further, that the effect of any such changes was de minimus and thus it was not incumbent upon the employer to bargain thereon. I disagree. While the distance of the move was not great, conditions of employment were altered as a result thereof. Thus, the size of the offices was changed so that the employees worked in smaller rooms. The available space for storing documents and files was much less after the move, and the change produced cramped conditions since ingress and agrees were restricted for each employee. Relocation across the corridor resulted in considerable noisy working conditions, as well as a flow of "traffic" which was not present when the employees occupied interior offices. Ventilation problems, albeit of a different kind, arose by reason of the relocation. Several of the foregoing items have been deemed negotiable by the Authority. In the Library of Congress, et. al., 7 FLRA No. 89 (1982) union proposals re (a) filing cabinet space, (b) choice of office size, (c) insuring quiet working conditions via partitions, (d) minimizing distractions to employees by situating employees properly, (e) corridors conforming to safety regulations, - all were held negotiable as working conditions. The changes visited upon the 12 individuals in Region II herein could well impact upon the performance of such employees. Continual noise, as well as crowded quarters with less space for filing materials, would certainly affect the work of employees. Moreover, ventilation and safety - both of which subjects the Union mentioned in its request to bargain are important conditions of employment. Thus, in this posture, I am unable to conclude that the changes, which produced problems in respect to the foregoing, were de minimus or had no material impact upon the 12 individuals who were relocated. See Internal Revenue Service Chicago, Illinois, 9 FLRA No. 73 (1982). Accordingly, I conclude that Respondents violated Sections 7116(a)(1) and (5) of the Statute by: (a) failing and refusing to bargain with the Union herein, prior to June 24, 1982, as to the impact and implementation of its decision to relocate the 12 employees of the Water Division of Region II and changing their offices; (b) unilaterally relocating the said 12 employees of the Water Division of Region II on June 24, 1982 and changing their offices without affording the Union an opportunity to bargain as to the impact and implementation of said relocation. /4/ Having found that Respondents violated Sections 7116(a)(1) and (5) of the Statute, I recommend the following Order: ORDER Pursuant to Section 7118(a)(7) of the Federal Service Labor-Management Relations Statute and Section 2423.29 of the Rules and Regulations, it is hereby ordered that the Environmental Protection Agency and Environmental Protection Agency, Region II shall: 1. Cease and desist from: (a) Refusing to negotiate in good faith with the American Federation of Government Employees, AFL-CIO, the exclusive representative of its employees, to the extent consonant with law and regulations, concerning the impact and implementation of the relocation of unit employees in the Water Resources Section, Technical Resources Branch, Water Division, Region II. (b) Relocating its unit employees without first notifying the American Federation of Government Employees, AFL-CIO, the exclusive representative of its employees, and affording it the opportunity to negotiate, to the extent consonant with law and regulations, concerning the impact and implementation of any such relocation of unit employees. (c) In any like or related manner interfering with, restraining or concerning employees in the exercise of rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the policies of the Statute: (a) Upon request, negotiate in good faith with the American Federation of Government Employees, AFL-CIO, the exclusive representative of its employees, to the extent consonant with law and regulations concerning the impact and implementation of the relocation of unit employees in the Water Resources Section, Technical Resources Branch, Water Division, Region II. (b) Notify the American Federation of Government Employees, AFL-CIO, the exclusive representative of its employees, of any intention to relocate its unit employees, and afford it the opportunity to negotiate, to the extent consonant with law and regulations concerning the impact and implementation of any such relocation of unit employees. (c) Post at its facilities in Region II, New York, NY copies of the attached notice marked "Appendix" on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Regional Director of Region II, and they shall be posted for 60 consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. The Regional Director shall take reasonable steps to insure that the said notices are not altered, defaced, or covered by any other materials. (d) Notify the Regional Director, Region II, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. (s)--- WILLIAM NAIMARK Administrative Law Judge Dated: December 16, 1983 Washington, DC --------------- FOOTNOTES$ --------------- /1/ The caption in the Complaint and other formal papers refers to a singular Respondent. However, since the obligation may differ as to the parent and the Regional EPA, I shall designate the former as Respondent Agency and the latter as Respondent Activity. /2/ Unless otherwise indicated, all dates hereinafter mentioned occur in 1982. /3/ Musil testified that no plans re the move were shown him, nor did the Director request any comments as to the relocation. Respondent moved to continue the hearing for another day in order to adduce testimony in this regard from Muszynski who was not in attendance. Its counsel stated that the Director would testify that he asked Musil for his comments re the contemplated move; that the union official did not offer any comments or reply thereto. The undersigned denied the motion. No justification was shown for this late an sudden request. further, assuming arguendo Muszynski so testified, his silence would not be determinative of the issue herein, viz. whether notification, and bargaining with, the Union was required re the relocation. While Viti testified that the Director mentioned that he had shown the floor plan to Musil and asked for his comments, no findings may be made that Muszynski so told Musil since Viti's testimony, in this regard, is heresay. /4/ Conceding that Respondents were entitled to unilaterally decide to relocate the 12 employees, General Counsel is concerned with bargaining re impact implementation. Further, no status quo ante remedy is sought herein. General Counsel, however, does seek an order giving retroactive effect to any agreement the parties do reach after such bargaining. In my opinion impact and implementation bargaining-- in the absence of status quo ante - is prospective in nature. Prescinding from a return to the old location on the eighth floor, negotiations re the items such as noise, office space, storage space and the like, may scarcely be retroactively implemented. Thus no such bargaining order is recommended. APPENDIX 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 to negotiate in good faith with the American Federation of Government Employees, AFL-CIO, the exclusive representative of our employees, to the extent consonant with law and regulations, concerning the impact and implementation of the relocation of unit employees in the Water Resources Section, Technical Resources Branch, Water Division, Region II. WE WILL NOT relocate our unit employees without first notifying the American Federation of Government Employees, AFL-CIO, the exclusive representative of its employees, and affording it the opportunity to negotiate, to the extent consonant with law and regulations, concerning the impact and implementation of any such relocation of unit employees. WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their rights assured by the Statute. WE WILL, upon request, negotiate in good faith with the American Federation of Government Employees, AFL-CIO, the exclusive representative of our employees, to the extent consonant with law and regulations concerning the impact and implementation of the relocation of unit employees in the Water Resources Section, Technical Resources Branch, Water Division, Region II. (Agency or Activity) Dated: (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 question concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director for the Federal Labor Relations Authority whose address is: 26 Federal Plaza, Room 24-102, New York, New York 10278, and whose telephone number is 212-264-4934.