20:0644(76)CA - EPA and EPA Region II and AFGE -- 1985 FLRAdec CA
[ v20 p644 ]
20:0644(76)CA
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.