22:0399(40)CA - VA Outpatient Clinic, Los Angeles, CA and AFGE Local 2297 -- 1986 FLRAdec CA
[ v22 p399 ]
The decision of the Authority follows:
22 FLRA No. 40 VETERANS ADMINISTRATION OUTPATIENT CLINIC LOS ANGELES, CALIFORNIA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2297, AFLO-CIO Charging Party Case No. 8-CA-50180 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices alleged in the complaint and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent filed exceptions to the Judge's Decision. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's decision and the entire record the Authority adopts the Judge's findings, /1/ conclusions, and recommended Order. /2/ ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Veterans Administration Outpatient Clinic, Los Angeles, California shall: 1. Cease and desist from: (a) Failing and refusing to implement the agreement with the American Federation of Government Employees, Local 2297, AFL-CIO, the employees' exclusive representative, concerning the establishment of a lunch-break area on the second floor of 417 South Hill Street, Los Angeles, California consonant with laws and regulations governing such matters. (b) In any like or related manner interfering with, restraining or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute: (a) Implement the agreement reached with the American Federation of Government Employees, Local 2297, AFL-CIO, the employees' exclusive representative, concerning the establishment of a lunch-break area on the second floor of 417 South Hill Street, Los Angeles, California consonant with laws and regulations governing such matters. (b) Post at its Los Angeles California Outpatient Clinic copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Clinic Director, or his designee, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material. (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VIII, Federal Labor Relations Authority, 350 South Figueroa Street, 10th Floor, Los Angeles, California 90071, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. Issued, Washington, D.C., July 9, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY 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 WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT fail or refuse to implement the agreement reached with the American Federation of Government Employees, Local 2297, AFL-CIO, the employees' exclusive representative, concerning the establishment of a lunch-break area on the second floor of 417 South Hill Street, Los Angeles, California consonant with laws and regulations governing such matters. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL implement the agreement reached with the American Federation of Government Employees, Local 2297, AFL-CIO, the employees' exclusive representative, concerning the establishment of a lunch-break area on the second floor of 417 South Hill Street, Los Angeles, California consonant with laws and regulations governing such matters. (Activity Dated: . . . By: (signature) (Title) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region VIII, whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles, California 90071 and whose telephone number is: (213) 688-3805. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 8-CA-50180 VETERANS ADMINISTRATION OUTPATIENT CLINIC, LOS ANGELES, CALIFORNIA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2297, AFL-CIO Charging Party Ruth M. Weil, Esq. For the Respondent Deborah S. Wagner, Esq. For the General Counsel Before: SALVATORE J. ARRIGO Administrative Law Judge DECISION Statement of the Case This case arose under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101, et seq. Upon an unfair labor practice charge filed by American Federation of Government Employees, Local 2297, AFL-CIO (herein referred to as the Union) against the Veterans Administration Outpatient Clinic, Los Angeles, California (herein referred to as Respondent), the General Counsel of the Authority, by the Regional Director for Region VIII, issued a Complaint and Notice of Hearing alleging Respondent violated the Statute by failing and refusing to effectuate an agreement reached with the Union concerning establishing a break area for employees at an office facility located at 417 South Hill Street, Los Angeles, Calfornia. A hearing on the Complaint was conducted in Los Angeles, California at which Respondent and the General Counsel were represented and afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by Respondent and the General Counsel and have been carefully considered. Upon the entire record in this case, my observation of the witnesses and their demeanor and from my evaluation of the evidence, I make the following: Findings of Fact At all times material herein the American Federation of Government Employees, AFL-CIO, has been the exclusive collective bargaining representative of certain of Respondent's employees working in its Outpatient Clinic in various portions of the Subway Terminal Building, a privately owned structure located at 417-425 South Hill Street, Los Angeles. Officers of Local 2297 represent bargaining unit employees in dealings with Respondent at that site. In early 1984 the Union became aware that Respondent was considering relocating some of the employees to the second floor of 417 South Hill Street, a floor not previously leased by Respondent /3/ containing almost 11,000 square feet of space. As plans progressed the Union made various inquiries into the matter. According to the testimony of Vincent Mannino, Local 2297 Chief Steward, the Union conveyed specific concerns to Respondent in a Labor-Management meeting on June 21, 1984 attended by Mannino, Local 2297 President Lula Mae Jones, Harold T. Rowan, Personnel Officer and a "recorder". /4/ Mannino testified that part of the Union's concerns discussed on June 21 included moving Union offices then located at 425 South Hill Street to larger quarters in the new space at 417 South Hill Street and providing employees who would be located on the second floor with a lunch-break area. Management's minutes of this meeting stated, inter alia: "3. Space-Moves: "Union request the Personnel Officer to remind management of contractual obligation to keep them informed of any space-move which will involve bargaining unit employees. Regarding the 2 proposed moves, some of the items AFGE is concerned about are: "a. New Building: 1. Parking for employees. 2. AFGE's office location. 3. Carpeting. 4. Lounge areas, how many, where located. 5. Cafeteria -- Restrooms, where located. 6. Reserved parking for the AFGE officials, handicapped employees. "b. Second Floor -- 417 South Hill Street: 1. Has the space been approved? 2. When will the move take place? 3. What employees will be affected? 4. Health, safety, security precautions." Mannino testified management indicated during the meeting that it would "get back to" the Union on their requests. Although the June 21 minutes do not mention the Union office or the lounge-break area matters, a June 26, 1984 memorandum sent to the then Clinic Director, Dean Stordahl, from Personnel Officer Rowan states: "1. AFGE wishes to set a Management/Union meeting with you and possibly Sal and/or Joyce and me as soon as possible. "2. Their concerns have been narrowed to the following: A. 2nd. floor move: 1. Approval, (Does Clinic have CO's approval to proceed). 2. Move plan date (projected). 3. Number of employees affected by move. 4. Plan for bathrooms, lounge area. B. New bldg. move: 1. AFGE office, where located, (Amount of space). 2. Relocation date plan. 3. Bathrooms, lounges and cafeterias for employees, (location). 4. Parking for employees. 5. Reserved parking for AFGE officials." Mannino testified that the parties again discussed the moves during the regular Labor-Management meeting held on July 24, 1984 at which time the Union raised questions concerning the second floor Union office, the lunch-break area, bathrooms for employees and access for the handicapped. /5/ Accordingly to Mannino, during this session management tentatively agreed to provide the Union with space in order to move the Union office but there was no agreement on the precise amount of space. With regard to other matters, Mannino testified: "They had agreed that they would present us with the plans which would show where the break area would be, which would show where the bathrooms were going to be, hand -- or handicapped access. They would have all those plans. They didn't have them yet. So we tentatively agreed that we would wait until they had them, but we wanted to see where everything was going to be situated." Thus, while Mannino's recollection of this meeting was somewhat vague, the thrust of his testimony was that management did not yet have all the data it needed on the move and would subsequently respond to the issues raised by the Union and review the floor plans with them. The only reference to the 417 South Hill Street matter contained in the minutes of that meeting states: "4. The move to the second floor has been approved. Director stated that he asked Sal Carlos to divide the 300 feet given to the Credit Union with AFGE for office space." The next discussion with management concerning the move to the second floor, according to Mannino, occurred during the August regularly scheduled Labor-Management meeting. /6/ Mannino testified: ". . . August is where we had reached agreement on the -- basic agreement on the office and we had -- they had then told us that there (was) going to be locked bathrooms for the employees on the second floor, and we had agreed to that. We had raised questions as to who was going to get the keys. They told us that there was going to be a patrolling security officer. We agreed with that, as far as security for the people being concerned. "We had made -- They told us there would be handicapped access. We agreed with that. "They told us there was going to be a break area in between the two wings of the second floor. Now, we had agreed to that, but it was hard to conceptualize it or visualize it because we didn't have the plans in front of us. . . . . . "They also said that there was a little room that would have vending machines and maybe a microwave oven right off of where the break room was going to be. We agreed to that. "They said there was going to be a sink there. We said, 'Fine' to that. We agreed with that. "BY MS. WAGNER: "Q. So was there anything left open at the end of this meeting? "A. Yes. "We wanted to find out the exact amount of space for the Union office, to see where it looked -- you know, where it was located, what it looked like. We wanted to see the exact space where the break area was going to be, how big it was going to be. They had mentioned something about partitions. We wanted to see what it looked like, because up until this time we had not seen anything. We wanted to 'see' where all the exits were for the -- you know, for fire and stuff for people to get in and to get out. We hadn't seen any of that at that time. We agreed with what they had said that there was going to be that stuff, but we still wanted to see where the location was. "Q. So what was management's response to that, when you wanted to 'see' where the location was? "A. They said they didn't have the plans at that time, and that they would show us the plans when -- as soon as they got them because at this meeting we had asked to see them. They didn't have any." The minutes of the August meeting contain the following comments listed under the caption "Move to the Second Floor": "a. Tour every Wednesday at 3:00 p.m. until completion. "b. Completion date set for November 15, 1984. "c. Safety: 1. Fire access 2. Adequate access for handicapped 3. Patrolling Police Officer 4. Locked restrooms on floor for employees 5. Rest area for employees (B.U.) /7/ "d. Telephone number will remain the same." Mannino testified that in late September or early October 1984 management called the Union to Director Stordahl's office to discuss the move to the second floor. Present were Stordahl, Rowan, Mannino and Jones. Mannino testified: "At that meeting they showed us the plans. That was the first time we had seen it, and they had pointed out to us there where the Union office was going to be. We had some questions because it seemed from the drawings that they were going to -- that the Union office was smaller than the other office which supposedly had been cut in half, but then they showed us where the break area was going to be, and they said there was going to be some partitions and we agreed that that was good. We agreed to that. Then they showed us where the secretaries were going to sit. We had some questions there because they had the -- they showed the secretaries sitting out in the hallways, and upon some questioning back and forth they had said that they would have partitions up so that, you know, they would be kind of like cut off so people just wouldn't be walking by them all the time out in the open. "And after that we had agreed to everything they showed us and the meeting ended." When examined on the specific conversation pertaining to the break area, Mannino stated: ". . . when I looked at the break area, I had asked where the tables and chairs were going to be, and it was Mr. Rowan, if I'm not mistaken, that said they were going to be along the window and there was going a partition here (sic) and a partition in -- in the back, and there was going to be a sink placed right across from this little room which he said may have a microwave oven in it and some vending machine, but they weren't sure because some electrical stuff had to go in there and they may not be able to do it; but he pointed that out to me on the plans. Where the sink would be, the chairs and tables would be, where the partition would be." Mannino further testified: "We were told the break area was going to be along here (indicating), and that it will be a partition here and a partition here (indicating). Here was where the little room was supposed to be, and here was where the sink was going to be (indicating). And it was right close to where a lot of people worked in here. . . ." A copy of the blueprint of the second floor layout was put in evidence and used during examination and cross-examination of witnesses. The break area in dispute herein is in a hallway, which, from my reading, measures approximately 39 feet long by 12 feet wide and connects two wings of the second floor office space. The blueprint reveals that one side of the 39 foot hallway contains a sink and one long wall which contains numerous windows. The opposite side of the hallway is primarily solid wall except for one window on one end of the hallway and a door, opposite the sink, at the other end leading to a room marked "Tel" which opens on two other rooms. The Union office is adjacent to the doorway to the "Tel" room. Mannino indicated that he understood tables and chairs would be located along the hallway wall containing the windows and sink and a partition placed on either end of the line of tables and chairs, thereby keeping the other side of the hallway open as a walkway. In mid-November 1984 approximately 25 employees were relocated to the second floor at 417 South Hill Street and a sink was installed in the hallway. According to Mannino, in late November or early December he had a conversation with Joyce McIntyre, Health Systems Specialist, who had some responsibility for planning the move. Mannino testified that during this conversation McIntyre showed him a catalogue with different types of partitions and indicated which ones she was going to order for secretaries and the break area. /8/ In early January 1985 Mannino was informed by some employees they heard rumors that the Director had changed his mind and decided not to have a break area on the second floor. Mannino questioned Personnel Officer Rowan on the matter and, after management refused to acknowledge any agreement to have a lunch-break area on the second floor, the Union's officers met and on January 31, 1985 sent the Director a memorandum stating, inter alia: "1. Due to your unilateral abrogation of an agreed upon verbal commitment to Local 2297 to have a break and lunch area on the second floor of 417 S. Hill Street for the employees working on that floor, we are requesting immediate negotiations over this change in conditions of employment." On February 5, 1985 the Director replied to the Union as follows: "1. Discussion of a proposed lunch and break area on the second floor in 417 So. Hill Street indeed took place. No Promise to establish such an area ever occurred, however; nor was any such matter 'negotiated' upon. All VA OPC employees have designated places for lunch and breaks that have long been established, recognized, and are accessible. No additional area was or will be designated for this purpose at this time, and neither has any new area been utilized for this purpose. "2. You Memorandum indicates a 'change in conditions of employment.' I fail to see how conditions that have never existed constitute a change. This subject is therefore not negotiable." Counsel for the General Counsel also called Lula Mae Jones, President of Local 2297, as a witness. Although her recollection of events was less clear than that of Mannino, her testimony concerning discussions involving the second floor move nevertheless generally supported his testimony. More specifically, Jones recalled that during the June Labor-Management meeting, along with expressing concerns as to what services would be relocated, restrooms and space for a Union office, the Union representatives asked if there would be a break area and management responded "yes." Although Jones' recollection and testimony regarding the regular July and August Labor-Management meetings was vague, she did testify that she thought they discussed the break area at all of their meetings. In any event, as to the September or early October meeting at which she was present with Mannino, Stordahl and Rowan, Jones testified they were first shown plans of the second floor layout including the passageway where the break area would be located. According to Jones, whose testimony deviated from Mannino's in only minor respect, Stordahl went over the floor plans indicating the location of the various offices and facilities, and regarding the break area, Jones testified: "His explanation to us was that this would be the lunch break area. In the lunch area would be chairs -- table(s), chairs, and partitions. Okay. With a sink and maybe a microwave oven. He did not say where the sink would be placed. He just said 'a sink'. He did not say where the microwave oven would be; but he said, 'There would be tables and chairs along the wall with a partition in front of the table(s) and chairs, leaving an opening for walkway from one corridor to the other one.' . . . . . "That was my understanding, because there was a window over there, and he said, 'There would be tables and chairs at the window.' Okay. And there is a window over there, and it was my understanding that it would not be as many table(s) and chairs on this side of the wall as there was on this side, because the window area here was longer." /9/ According to Jones, after Stordahl concluded his explanation of the break area, the Union representatives indicated they "accepted it." Jones also testified that sometime in late October 1984 she was present when a group of eight or ten employees was given a tour of the second floor facility by Sal Carlos, Facility Manager of the Outpatient Clinic and Brian Murphy, Subway Terminal Building Manager, a representative of the owner of that property. According to Jones, Carlos and Murphy were at the head of the group and Jones was at the rear. As the group approached the hallway area in the vicinity of the door to the "Tel" room, an employee towards the front of the group asked a question concerning the location of a microwave oven. Jones recalled that either Carlos or Murphy responded that they were not sure, and continued: "but there will be tables and chairs over here and over here." Suzette Mitchell, an employee called as a witness by counsel for the General Counsel, also testified that she was present with approximately five other employees at a tour of the second floor. She testified that her tour, sometime in early November 1984, was conducted only by Carlos. According to Mitchell, while the group was still some distance from the hallway, although in view of it, an employee asked whre the lunch area was going to be and Carlos responded: ". . . down that way," indicating towards the hallway and stating that tables and chairs would be placed there. Personnel Officer Rowan, called as a witness by counsel for Respondent, testified that a meeting with Union representatives in June 1984 gave rise to his memorandum to the Clinic Director dated June 26, 1984, supra. Thereafter, according to Rowan, he and Stordahl met with the Union sometime in early July 1984 at which time preliminary plans of both the new building and the second floor at 417 South Hill Street were reviewed. According to Rowan's account of this meeting, Stordahl explained the layouts of both facilities and answered questions. The new building consisted of six floors and accordingly, more time was spent reviewing the plans for the new building. In this regard, Rowan testified, inter alia; "Ms. Jones was concerned about the location of her Union office in the new building and asked the Director if it could be located in a different area other than the sixth floor of the brand new building. She wanted it located on the second floor, which was adjacent to employee lockers, lounges, and a cafeteria; and a considerable amount of conversation took place about this particular subject. "As I recall, Ms. Jones was quite concerned that if her Union office was not in a place where it would be easily accessible to employees then the Union wouldn't be available, et cetera. . . . . . . . "Ms. Jones was concerned about parking. She wanted to know if there would be free parking available for employees and reserved parking or a space for her Union -- herself and Union officials. . . . . . . . ". . . the conversation then began to center around her accessibility to her bargaining unit members and the second floor of the new building, which was described by the Clinic Director as having an outside patio, which was -- would be conductive to employees enjoying their lunch breaks and -- and the like . . . (and) whether or not it would be appropriate to have the Union office on the second floor or on the sixth floor, which is what the plans showed at the time." The new facility contained a lunch room on its second floor and Rowan also recalled Stordahl pointing out the future location of tables and chairs in that room. The second floor plans for the 417 South Hill Street building were also discussed, specifically with regard to the matters of Union concern listed on Rowan's June 26 mrmorandum, supra. Rowan testified that the parties talked about two places where a lounge area might be appropriate: the room marked "Tel" on the blueprint; and the corridor between the two work areas which appeared at the time "might be feasible for a lounge area." However, according to Rowan, the parties reached no agreement as to the location of a lounge area at 417 South Hill Street. With regard to the August regular Labor-Management meeting, Rowan testified that Chief Engineer Sal Carlos was present at that meeting to explain the hazards of bargaining unit employees going into the second floor area unescorted before its completion and informing the Union of how management was arranging guided tours for employees. Although Rowan acknowledged that the matter of a break area came up at more than one meeting and indicated no discussion of the break area took place after the August meeting, Rowan gave no testimony regarding any discussion of a rest area during the August session nor did he attempt to explain the notation on the minutes of the August 1984 Labor-Management meeting: "5. Rest area for employees (B.U.)." Rowan stated that he never received any request to bargain on the second floor move nor did he know the Union wished to negotiate on the matters they expressed interest in relating to the move. Rowan also testified that at other times when the Union desired to bargain on a matter it would send a memorandum specifically indicating the problem and the area of the contract involved. However, Rowan further stated that the regularly scheduled Labor-Management meetings covered ". . . items that AFGE felt they wanted information on that might have an affect on their bargaining unit members. And, of course, items they felt they could negotiate with management on." Clinic Director Stordahl also testified that he met with Rowan, Jones and Mannino in early July 1984 as a result of Rowan's June 26 memorandum to him which indicated the Union had concerns regarding the move to the second floor and the new building, supra. Stordahl indicated the meeting was for the purpose of bringing the Union up to date on the planning for the new six-story building and to discuss ". . . what some of our preliminary thinking was if and when (they) got the second floor approved . . ." which was at that time in the "initial planning phase." According to Stordahl, at the meeting Respondent had blueprints of the new building and "some line drawings of the second floor potential expansion" which had not been developed by an architect. Regarding a lunch room at 417 South Hill Street, Stordahl testified, inter alia: "Well, we were talking about what we could bring over there to try to fill the space. I was really, in the initial stages of it, trying to get enough things into there . . . to fill it up to justify renting it, quite frankly; and in the process of -- of considering the number of alternatives, a -- the space that's shown here as 'Mechanical Room', we told them that we'd like to put a lunch room in that. The -- There's about three steps up, or two steps up, into that space. I guess, actually on this diagram, its' called 'Telephone Room'. "There's about two steps up into this space that we felt you could close the door to and make it out to be some type of a break room. "The building owner subsequently advised us that that was not possible because he had -- he needed access to the mechanical space and the telephone equipment space." Stordahl did not recall any discussion concerning placing the lunch room in the hallway or mention of vending machines but did recall he pointed out a plumbing outlet in the hallway indicating that the property owner offered to install a sink so employees "could wash their coffee cups, or water their plants, or whatever." Stordahl also testified that the Union asked for office space on the second floor and, although no agreement was reached during the early July meeting on this or any other matter, a room originally designated "Credit Union" on the plans was changed to "Union Office" and, at the request of the Union, that space was subsequently enlarged. With regard to the new building, Stordahl testified that during the early July meeting management reviewed all the blueprints with the Union including pointing out the area on the second floor marked "Canteen" and pointing out where tables and chairs would be. Stordahl further testified that sometime between the early July meeting and the regular Labor-Management meeting held on July 24 management concluded that it would give the Union office space on the second floor of the 417 South Hill Street building and at the July 24 meeting agreed that if the lease for the space was entered into, the Union could have the office space and subsequent thereto, the space allotted to the Union was enlarged. Stordahl recalled no further meetings with the Union on the second floor move in which he participated. In addition, Stordahl expressed his opinion that a lunch-break area in the hallway would retard traffic and be "disruptive" in appearance in that moving visitors through an area where food is being eaten or prepared would not properly reflect a business environment. Stordahl indicated that if tables and chairs were permitted the next step would be people asking for a microwave and heating up leftovers. Facility Manager Carlos acknowledged that he was present at the August 1984 regular Labor-Management meeting, supra, but recalled no discussion concerning a lunch or break area on the second floor of 417 South Hill Street. However, Carlos testified he was not present during that entire session. Carlos further testified that on three occasions he participated in taking employees on tours of the second floor facility, all of which were in the company of Subway Terminal Building Manager Murphy. Carlos denied saying the corridor would be used for a break area but did recall that a response to a question by an employee as to the function of the "Tel" room, he replied they had considered putting tables and chairs in the room for use as a break area but they concluded the room would be too noisy for that purpose due to the proximity of air conditioning apparatus. /10/ No testimony was elicited from Carlos as to the source of this information except that the matter had been considered but due to the noise factor, it was "immediately" quashed. Carlos testified that either he or Murphy mentioned that a sink would be placed in the hallway area and he may have explained that the sink could be used for washing utensils after coffee breaks. Building Manager Murphy testified that other than asking Respondent whether they needed a lunch room on the second floor early on and being told they did not, he had no discussion with anyone concerning such a facility. Murphy also testified he did not hear Carlos say anything about a lunch-break room during the two employee tours (around 10 employees each time) of the second floor which he participated in. /11/ Evidence was also received regarding the physical arrangements at the 417-425 South Hill Street facility. Thus, the two addresses are in reality two entrances to the same building, about 50 feet apart and the 425 South Hill section has a lunch room for employees. While it would take only a few minutes to go from the second floor of the 417 section to the 425 lunch room, the two sections are not connected internally thereby requiring one to exit one section in order to enter the other. Ultimate Findings, Discussion and Conclusions Counsel for the General Counsel contends that Respondent failed to negotiate in good faith with the Union when, after agreeing to establish a break area on the second floor of 417 South Hill Street by placing tables and chairs along one wall of a corridor and enclosing this section with partitions so the area was separated from the passageway, Respondent failed and refused to effectuate this agreement. Respondent denies that any agreement was reached on the matter, contending that the Union never made a request to bargain on the subject. Respondent also argues that management has no obligation to bargain on the matter since the absence of a lunch-break area on the second floor had no "substantial adverse impact" on unit employees. Essential to a determination herein is a resolution of credibility. Thus, Chief Steward Mannino and Local President Jones testified to facts which, if credited, would establish that an agreement was reached by the parties to have a lunch-break area in the second floor hallway. On the other hand, Personnel Officer Rowan and Clinic Director Stordahl denied any agreement and gave testimony which, at most, would indicate that the matter was discussed but left unresolved. Based upon the witnesses' demeanor and my evaluation of the evidence, in the total context of the situation, I find and conclude the parties agreed to a lunch-break room on the second floor as alleged. In this regard I was particularly impressed with the demeanor of Mannino, whose testimony was substantially corroborated by Jones. Thus, I find that beginning in June 1984 the Union made known to Respondent its desire to have a lunch-break area for employees. The matter was thereafter discussed at the July and August regular monthly Labor-Management meetings and at no time did Respondent indicate its opposition to the concept. /12/ I further find that the parties met in September or early October, as set forth more fully above in Mannino's testimony, at which time Respondent clearly conveyed its plan or intention to locate a lunch-break area in the hallway with tables, chairs and partitions, and the Union's expressed its agreement with this decision. I conclude that absent any evidence of a subsequent timely discussion or agreement to the contrary, this constituted a binding agreement on the matter. /13/ With regard to partitions, I find that while Respondent agreed to furnish partitions to set off the lunch-break area from a passageway between the two wings, it would appear from the somewhat divergent accounts of Mannino and Jones that no final decision was made as to specifically how the partitions would be displayed. In any event, the final details concerning the arrangement of the lunch-break area must comport with existing laws and regulations, including the California Building Code. Respondent may well have had second thoughts on the feasibility of the location of the lunch-break area, but negotiations and not abrogation was the course of action necessary for Respondent to follow if it wished to fulfill its obligation under the Statute. /14/ In view of my findings and conclusions, supra, I reject Respondent's argument that management had no obligation to bargain since the absence of a lunch-break area on the second floor had no "substantial adverse impact" on employees. Thus, I have found Respondent did bargain on the matter and in fact agreed to the lunch-break area. In such circumstances arguments going to the initial bargaining obligation need not be addressed. Accordingly, in view of the entire foregoing I conclude Respondent, by the conduct described herein, failed and refused to negotiate in good faith with the Union and thereby violated section 7116(a)(1) and (5) of the Statute and I recommend the Authority issue the following: ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Veterans Administration Outpatient Clinic, Los Angeles, California shall: 1. Cease and desist from: (a) Failing and refusing to implement the agreement reached with the American Federation of Government Employees, Local 2297, AFL-CIO, the employees' exclusive representative, concerning the establishment of a lunch-break area on the second floor of 417 South Hill Street, Los Angeles, California consonant with laws and regulations governing such matters. (b) In any like to related manner interfering with, restraining or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute: (a) Implement the agreement reached with the American Federation of Government Employees, Local 2297, AFL-CIO, the employees' exclusive representative, concerning the establishment of a lunch-break area on the second floor of 417 South Hill Street, Los Angeles, California consonant with laws and regulations governing such matters. (b) Post at its Los Angeles California Outpatient Clinic copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Clinic Director and shall be posted and maintained by him for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material. (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VIII, Federal Labor Relations Authority, 350 South Figueroa Street, 10th Floor, Los Angeles, California 90071, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. /s/ SALVATORE J. ARRIGO Administrative Law Judge Dated: November 15, 1985 Washington, D.C. --------------- FOOTNOTES$ --------------- (1) The Respondent excepted to certain credibility findings made by the Judge. The demeanor of witnesses is a factor of consequence in resolving issues of credibility, and the Judge has had the advantage of observing the witnesses while they testified. The Authority will not overrule a Judge's resolution with respect to credibility unless a clear preponderance of all the relevant evidence demonstrates such resolution was incorrect. The Authority has examined the record carefully, and finds no basis for reversing the Judge's credibility findings. (2) Having found that the Respondent had in fact bargained and agreed to the lunch-break area, in agreement with the Judge the Authority finds it unnecessary to address the Respondent's arguments going to the initial bargaining obligation. (3) Around this same time plans were being developed by Respondent to erect another facility at Temple and Alameda Streets in Los Angeles. (4) The parties held Labor-Management meetings on a regular monthly basis. Management prepared minutes of such meetings and provided the Union with a copy of the minutes. (5) Present at this meeting was Mannino, Local President Jones, Clinic Director Stordahl, Personnel Officer Rowan and a Personnel Management Specialist. (6) Neither testimony nor the minutes of this session indicate the precise date of the meeting. (7) B.U. stands for Bargaining Unit. (8) McIntyre denied any such conversation ever occurred. (9) Jones' testimony of the placement of the partitions differs from Mannino's in that Jones understood the partition's would be lined horizontally to the long walls of the hallway thus keeping the tables and chairs from view of passersby using the walkway. (10) It is not clear from Carlos' testimony whether this explanation was given on one or more tours. (11) Murphy also testified that the California Uniform Building Code closely regulates the construction of dining facilities and the use and obstruction of hallways. (12) Indeed, Respondent's own minutes of the regular August Labor-Management meeting, supra, indicates that at least as of that time the Union was still concerned with a rest area for bargaining unit employees. The minutes thus support Mannino's testimony on this and Respondent's failure to adequately explain the notation on the minutes, in view of the general thrust of the testimony of Rowan and Stordahl, raises substantial questions as to their credibility, especially that of Rowan who was present at the August meeting. (13) Contrary to Respondent's contention I find and conclude that the meetings on the second floor relocation constituted bargaining on the matter. Indeed it is quite obvious from the testimony of Respondent's own witnesses that the parties, beyond question, discussed and reached agreement on the issue of second floor office space for the Union, an integral part of the overall discussion. The Statute does not require that negotiations must follow any prescribed procedure and the fact that bargaining between the parties might have been more formal at other times is immaterial. (14) pin reaching these findings and conclusions I have not relied upon the testimony of Jones and Mitchell with regard to the statements they indicated were made on the tours by Facility Manager Carlos or Building Manager Murphy. It is quite possible that, as Carlos testified, statements were made relating to previously considering using the "Tel" room for a break area and the comments were misinterpreted in view of the physical locations of Jones and Mitchell when the comments were made and the circumstances of the situation. I also make no credibility finding with regard to the purported discussion between Mannino and Health Systems Specialist McIntyre regarding partitions, supra. 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 fail or refuse to implement the agreement reached with the American Federation of Government Employees, Local 2297, AFL-CIO, the employees' exclusive representative, concerning the establishment of a lunch-break area on the second floor of 417 South Hill Street, Los Angeles, California consonant with laws and regulations governing such matters. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL implement the agreement reached with the American Federation of Government Employees, Local 2297, AFL-CIO, the employees' exclusive representative, concerning the establishment of a lunch-break area on the second floor of 417 South Hill Street, Los Angeles, California consonant with laws and regulations governing such matters. (Agency or Activity) Dated: . . . By: (Signature) This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region VIII, whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles, California 90071 and whose telephone number is: (213) 688-3805.