[ v52 p1107 ]
The decision of the Authority follows:
52 FLRA No. 112
FEDERAL LABOR RELATIONS AUTHORITY
GENERAL SERVICES ADMINISTRATION
SAN FRANCISCO, CALIFORNIA
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
DECISION AND ORDER
March 14, 1997
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.(1)
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel. The Respondent filed cross-exceptions and an opposition to the General Counsel's exceptions.
The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to bargain with the Union over changes in conditions of employment resulting from moving a bargaining unit employee from one building to another. The Judge found that the Respondent violated the Statute, as alleged in the complaint.
Upon consideration of the Judge's decision and the entire record, we conclude that the Respondent was not required to bargain with the Union because the effect of the changes on unit employees' conditions of employment was de minimis. Therefore, by refusing to bargain, the Respondent did not violate section 7116(a)(1) and (5) of the Statute. Accordingly, we dismiss the complaint.
II. Background and Judge's Decision
The facts are set forth fully in the Judge's decision and are only briefly summarized here.
The affected employee, a Property Disposal Technician in the Area Utilization Office (AUO), Tucson, Arizona, filed EEO charges against the Respondent. As the charges moved toward a hearing, the employee complained to the Union President about stress that she was experiencing due to her lack of privacy to prepare for her EEO hearing. In response, the Union President suggested that the entire AUO be relocated approximately 1 mile to the Federal Building.
The Respondent notified the employee that she would be temporarily relocated to the Federal Building. The Union President notified the Respondent that the Union wished to negotiate over the relocation and requested that the Respondent take no action until negotiations had been completed. The Respondent replied that, in its view, the temporary assignment of the employee did not give rise to a bargaining obligation. The Respondent moved the employee. Thereafter, the Union submitted bargaining proposals to the Respondent and, when the Respondent refused to bargain, the Union filed an unfair labor practice charge. The General Counsel issued a complaint, alleging that the Respondent violated section 7116(a)(1) and (5) of the Statute when it moved the employee before completing bargaining over the impact and implementation of the move.
The Judge determined that "notice of the temporary move" was "covered by" the provision of the parties' agreement entitled "Space Relocation." Judge's Decision at 9-10. However, the Judge also determined that, under a different provision of the parties' agreement, the Respondent was required to bargain over changes in conditions of employment. The Judge found that, in making the temporary move, the Respondent changed the employee's working conditions. The Judge noted that at the AUO office, the employee had a fax machine, filing cabinet, telephone answering machine, chairs for visitors, and manuals needed to perform her work, but at her new location she had none of the foregoing equipment and no sign indicating her presence in the building.(2) Because the Judge determined that "the move did not necessitate the changes" and because he found that "the Agreement specifically cover[ed] changes [in] conditions of employment," the Judge concluded that the Respondent's unilateral action in implementing the changes violated section 7116(a)(1) and (5) of the Statute.(3) Id. at 10-11.
The Judge recommended an order requiring, among other things, that the Respondent cease and desist from its unlawful conduct and post an appropriate notice signed by the Administrator of the San Francisco Region. With regard to the General Counsel's request that the affected employee's parking expenses at the Federal Building be reimbursed, the Judge found, as relevant here, that parking was not part of the employee's "pay, allowances, or differentials" and, as such, was not permitted by the Back Pay Act, 5 U.S.C. § 5596(b)(1)(A). Id. at 12.
III. Positions of the Parties
A. General Counsel
The General Counsel excepts to the Judge's conclusion that parking fees could not be included in the recommended remedy. The General Counsel argues that the Authority should order the Agency to make the employee whole for "parking expenses [which] she incurred by reason of the [Agency] moving her to the Federal Building without fulfilling its bargaining obligations." Brief to Exceptions at 7. The General Counsel asserts that this remedy is not contrary to the Back Pay Act, relying on U.S. Department of Labor, Washington, D.C., 44 FLRA 988 (1992) (DOL).(4)
The Respondent excepts to the Judge's finding that the impact of the changes on the affected employee's working conditions was more than de minimis. In this regard, the Respondent argues that, but for the employee's failure to communicate and cooperate with the Respondent on the changes, they would have been de minimis. Cross-exception and Opposition at 2. In addition, the Respondent claims that the proposals the Union submitted after the move was implemented were not negotiable. The Respondent maintains that "[a]ny obligation to bargain ended when the . . . [contractual] period for submission of negotiable proposals elapsed." Id.
The Respondent argues, for several reasons, that the Authority should not modify the Judge's recommended remedy to provide the affected employee reimbursement for parking. First, the Respondent asserts that the relocation was "an exercise of a management right . . . not substantively negotiable," and that the record demonstrates that the General Counsel "acknowledge[d] that the relocation was an exercise of a management right." Id. at 3. Second, the Respondent claims that the Union was aware that the Federal Building had restricted parking but did not offer a proposal on the issue. Third, the Respondent argues that the employee could have continued to park for free at AUO and taken public transportation to the Federal Building. Finally, the Respondent contends that the employee failed to offer documentation as to her claimed parking expenses.
IV. Analysis and Conclusions
In determining whether a party has an obligation to bargain over the impact and implementation of a change in conditions of employment, the Authority considers whether the Respondent changed conditions of employment, and if so, whether the changes had more than a de minimis impact on employees' conditions of employment. See Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 407-08 (1986) (SSA). It is well-established that, in assessing whether the effect of a decision on conditions of employment is more than de minimis, the Authority looks to the nature and extent of either the effect, or the reasonably foreseeable effect, of the change on bargaining unit employees' conditions of employment. Id. Equitable considerations will also be taken into account in balancing the various interests involved. Id. at 408.
Applying the standard set forth in SSA, we conclude that the effect of the changes on the employee's conditions of employment in this case was de minimis, and, therefore, that the Respondent was under no obligation to bargain. We note, first, that the move was temporary. In SSA, id. at 407, "the temporary, recurring, or permanent nature of the change" was specifically set forth as a factor to be examined in determining whether the effect of a change is more than de minimis. Further, equitable considerations support a conclusion that the effect of the move was de minimis. In this regard, the temporary move was in response to a suggestion from the Union that a relocation of the entire office to the Federal Building might be beneficial for the employee. The suggestion followed complaints from the employee "about the stress she was under at 450 North Grande" and the "lack of privacy" at that building while she was preparing her EEO case for hearing. Judge's Decision at 4-5.
Additionally, the nature of the changes at issue are both minor and the normal consequences of any office relocation, especially one that is intended to be temporary. For example, it is unreasonable to assume that the Respondent intended that the employee's office would contain no chairs for customers or manuals necessary for her to perform her job, or that her location would be concealed so that customers could not reach her. These are typical problems that arise after a move and are generally handled simply through administrative channels. With regard to the lack of file cabinets, the record discloses that, "[i]n a normal day" after the move the employee had "not that much filing." Transcript at 54. Some changes, such as the employee's distance from the fax machine and her asserted need for an answering machine, flowed from the nature of the new building. However, when the Union suggested the Federal Building as an appropriate place for the AUO on a temporary basis, it must have realized that some aspects of a move from a one-story structure to a much larger high-rise building would create such inconveniences. As noted above, the effect of such changes is tempered by the equitable consideration that the Respondent was responding to the perceived needs of the employee, as conveyed by her exclusive representative. Finally, it is significant, although not dispositive, that the employee suffered no loss of pay or grade or changes in her hours of work or other such matters. See SSA, 24 FLRA at 408 (the effect of a reassignment of a unit employee back to her previous position after 3 months' performance in a new position was de minimis because of the "limited nature" of the change and because, even though the reassignment involved some changes in work assignments and duties, the reassignment "involved no loss in pay or grade, nor did it involve a change in her hours)." See also U.S. Department of Labor, Washington, D.C. and U.S. Department of Labor, Employment Standards Administration, Chicago, Illinois, 30 FLRA 572, 579 (1987) (Employment Standards) (even though the reassignment of an employee involved an additional duty, the Authority concluded that the increased duties had only a de minimis impact on the employee's conditions of employment, noting, among other things, that the employee's "hours, pay, desk location, and opportunities for promotion remained the same").
Cases in which the Authority has found the effects of employee relocations to be more than de minimis are distinguishable from this case. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 36 FLRA 655 (1990) (HHS); Environmental Protection Agency and Environmental Protection Agency Region II, 25 FLRA 787 (1987) (EPA). Those cases involved changes caused by permanent relocations of employees that were instituted by agency management for operational reasons. In contrast, the relocation of the employee in this case was a temporary move resulting from a Union suggestion that such a relocation might be beneficial to the employee.
Our review of the record demonstrates that the employee was slightly inconvenienced for a period of time by a relocation. However, the Statute does not require bargaining every time an employee is slightly inconvenienced.(5) Balancing the respective interests under SSA, we conclude that the changes in the employee's conditions of employment were de minimis. Accordingly, we find, contrary to the Judge, that the Respondent did not violate section 7116(a)(1) and (5) of the Statute when it refused to bargain over the impact and implementation of its decision to move the employee.
The complaint is dismissed.
Chair Segal's Dissenting Opinion:
Applying the de minimis standard developed by the Authority in SSA and its progeny, I conclude, contrary to the majority and in agreement with the Administrative Law Judge, that the changes at issue in this case, examined collectively, had more than a de minimis effect on the employee's conditions of employment.
The record establishes that, both before and after the move, the affected employee was responsible for, among other things, ensuring that all documents met procedural requirements prior to approval, as well as providing, upon request, copies of such procedural requirements to AUO's customers. G.C. Exhibit 9 at 2, 5. However, after the move, the employee had no access to the manuals for reference purposes or for providing customers with copies of the procedural requirements.(6) The employee also was intermittently responsible, both before and after the move, for setting up and maintaining files. Id. at 3, 5; Transcript at 54-55. After the move, however, the employee had no file cabinets. Further, the employee remained responsible after the move for providing information to the public and answering telephone inquiries. G.C. Exhibit 9 at 3, 5. Nevertheless, in her new location, there were no signs indicating how members of the public could locate the employee, and the employee had no telephone answering equipment. Finally, the employee was at all times responsible for checking incoming documents, including documents transmitted by facsimile. After the move, the employee was separated from the FAX machine by five floors.
Here, it is foreseeable that changes in access to office equipment, reference materials, and notice to customers would affect, and are related in a "meaningful way" to, the employee's ability to accomplish her responsibilities. See HHS, 36 FLRA at 667. Although each change, standing alone, might be viewed as minor, it is the cumulative effect of the changes that must be measured.
In this case, the changes in the affected employee's conditions of employment, considered as a whole, were more far-reaching than those previously found by the Authority to require bargaining because their effect on conditions of employment was more than de minimis. See e.g., HHS, 36 FLRA at 668-69 (Authority rejected the respondent's contention that the effect of changes in seating assignments of 4 out of 16 unit employees, including one employee's loss of access to a window, was de minimis); and EPA, 25 FLRA at 790 (Authority concluded that effects of relocation of 12 unit employees to a new area approximately 50 feet away from the old area on the same floor of the office building were more than de minimis where relocation reduced office size and space for storing and filing documents, and increased noise). In HHS, the Authority stated that "the location in which employees perform their duties, as well as other aspects of employees' office environments, are 'matters at the very heart of the traditional meaning of conditions of employment.'" Id. at 668 (quoting Library of Congress v. FLRA, 699 F.2d 1280, 1286 (D.C. Cir. 1983)). Consistent with this precedent, I find that the collective effect of the changes in this case was more than de minimis.(7)
The Respondent's unsupported assertion that the effect of the changes on the employee was exaggerated by the employee's alleged lack of communication with her supervisor does not warrant a contrary conclusion.(8) The Respondent made no attempt to establish its claim at the hearing. Indeed, there is unrefuted testimony that, on at least one occasion, the employee requested assistance from her supervisor and that the Respondent failed to respond to this request. Transcript at 57-58. Thus, the Respondent has not supported its argument that the impact of the changes would have been de minimis "but for [the employee's] [sic] inaction." Cross-exceptions and Opposition at 2.
In addition, the cases relied on by the majority do not compel a contrary conclusion because they do not address changes in office space or other relocations. See SSA, 36 FLRA 655; Employment Standards, 30 FLRA at 579. Furthermore, although I agree with my colleagues that the temporary nature of the changes in conditions of employment is a relevant factor to consider, at the time of the move, the Respondent advised the employee that, while the relocation was not intended to be permanent, "no specific period of time ha[d] been determined for [the employee] to work at the Federal Building." G.C. Exhibit at 2.
Accordingly, I am persuaded that the Judge correctly applied existing precedent to arrive at his conclusion in this case that the effect of the change on the affected employee's conditions of employment was more than de minimis. Although I do not join the conclusion reached by the majority on this point, I agree with my colleagues that the issues in this case could have been resolved without litigation, and believe it would have been preferable to do so. I also note, however, that "employees' and management's competing interests in office space 'present the sort of questions collective bargaining is intended to resolve.'" HHS, 36 FLRA at 668 (citation omitted).
The Respondent's argument that it did not violate the Statute because, after it relocated the affected employee, the Union submitted proposals that were outside the duty to bargain, ignores established precedent. The negotiability of union bargaining proposals after an agency's unilateral action is not relevant to a determination of whether a violation of the Statute resulted from the agency's unilateral action. See Bureau of Engraving and Printing, Washington, D.C., 44 FLRA 575, 581 (1992) (events that take place after a unilateral implementation of a change in conditions of employment are irrelevant to a determination of whether a violation of the Statute resulted from the unilateral action). Thus, as the effect of the changes on the employee's conditions of employment was more than de minimis, I would find that the Respondent violated the Statute by implementing the changes without bargaining.
However, having concluded that the Respondent did have an obligation to bargain, I would not direct the Respondent to reimburse the affected employee for her increased parking expenses, as requested by the General Counsel. Absent an express statutory waiver of sovereign immunity, the Authority is not authorized to provide reimbursement for monetary losses. Department of the Army, U.S. Army Commissary, Fort Benjamin Harrison, Indianapolis, Indiana v. FLRA, 56 F.3d 273, 277 (D.C. Cir. 1995) (Ft. Benjamin Harrison), vacating in part Department of the Army, U.S. Army Soldier Support Center, Fort Benjamin Harrison, Office of the Director of Finance and Accounting, Indianapolis, Indiana, 48 FLRA 6 (1993).(9) The Back Pay Act authorizes back pay for reductions in pay, allowances or differentials that result from unwarranted personnel actions. The General Counsel does not dispute the Judge's finding that the parking fees do not constitute pay, allowances, or differentials. As such, reimbursement of the parking fees is not authorized by the Back Pay Act. The General Counsel has suggested no other statute, and none is apparent, that would support finding a waiver of sovereign immunity under the circumstances of this case. Therefore, there is no basis on which to order the requested make-whole monetary relief.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
| GENERAL SERVICES ADMINISTRATION REGION 9, SAN FRANCISCO,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 81
Deborah Finch, Esquire For the Respondent
Matthew L. Jarvinen, Esquire
For the General Counsel
Mr. Fred, Huerta
For the Charging Party
Before: WILLIAM B. DEVANEY
Administrative Law Judge
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. § 7101, et seq.(1), and the Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns whether the temporary move of one employee without bargaining on impact and implementation violated §§ 16(a)(5) (1) of the Statute, Respondent contending that it was "covered by" the Agreement of the parties; and the Union asserting that, whether or not notice of the move was covered by the agreement, the agreement required notice and an opportunity to bargain on changes of working conditions and that Respondent violated Act and contract by its unilateral change of working conditions.
This case was initiated by a charge filed on June 23, 1993, which alleged violation of §§ 16(a)(1), (4) and (5) of the Statute (G.C. Exh. 1(a)). The Complaint and Notice of Hearing issued on December 10, 1993 (G.C. Exh. 1(b)) and set the hearing for a date, time and place to be designated later. By Order dated March 23, 1994 (G.C. Exh. 1(d)), this case was transferred, pursuant to § 2429.2 of the Rules and Regulations, 5 C.F.R. § 2429.2, to the Denver Region; by Order dated July 21, 1994, the case was set for hearing on September 23, 1994, in Tucson, Arizona, at a location to be determined (G.C. Exh. 1(e)); and by Order dated August 19, 1994, the place of hearing was fixed (G.C. Exh. 1(f)), pursuant to which a hearing was duly held on September 23, 1994, in Tucson, Arizona, before the undersigned. All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues involved, and were afforded the opportunity to present oral argument which each party waived. At the conclusion of the hearing, October 24, 1994, was fixed as the date for mailing post-hearing briefs, which time was subsequently extended, on timely motion of the General Counsel, to which the other parties did not object, for good cause shown, to November 18, 1994. Respondent and General Counsel each timely mailed a brief, received on, or before, November 25, 1994, which have been carefully considered. Upon the basis of the entire record, I make the following findings and conclusions:
1. The National Federation of Federal Employees (NFFE) is the exclusive representative of a nationwide bargaining unit of General Services Administration (GSA) employees. On December 26, 1991, NFFE and GSA entered into an Agreement which was applicable at all times material (G.C. Exh. 8; Tr. 10). National Federation of Federal Employees, Local 81 (hereinafter "Union") is a constituent part of NFFE and its agent for the representative of bargaining unit employees in Nogales, Sells and Tucson, Arizona (G.C. Exh. 8, Appendix A, p. 79).
2. The Agreement provides, in part, as follows:
Article 22, entitled, "Details, Reassignments, and Voluntary Changes", reads, in part, as follows:
"Section 1. Details
"A. A detail is the temporary assignment of an employee to a different position or to a different set of duties for a specific period, with the employee returning to his/her regular duties at the end of the detail, as the employee continues to be the incumbent of the position from which detailed.
. . .
"Section 2. Reassignments
"A. Reassignment means a change of an employee, while serving continuously within the same agency, from one position to another without promotion or demotion. . . . ." (G.C. Exh. 8, Art. 22, Section 1A; Section 2A).
Article 31, entitled, "Employee Space" provides, in part, as follows:
"Section 3. Space Relocation
"The employer will notify the Union prior to undertaking any move of bargaining unit employees involving a formal organization component or substantial portion thereof. Space relocations will be based upon business principles. . . ." (G.C. Exh. 8, Art. 31, Secton 3)."
3. Ms. Carol Decker has worked for Respondent about 12 years in Tucson, Arizona, approximately the last 10 years in its Area Utilization Office, or its predecessor, as a Property Disposal Technician. The Area Utilization Office (AUO) is responsible for transferring excess federal property from agencies that no longer need it to agencies that do. The office covers the entire state of Arizona and southern Nevada. Although Ms. Decker is in the bargaining unit and has been represented by the Union, she is not a member (Tr. 45-47). Mr. Gary Analora, Area Utilization Office in Tucson, has been Ms. Decker's immediate supervisor for about fours years and Branch Chief Peggy Lowndes, Ms. Decker's third line supervisor, is located in San Francisco, California (Tr. 47-48).
4. Ms. Decker's responsibilities at the AUO involved interacting with other federal agencies (GSA's customers) to explain how they can dispose of excess property or how they can acquire property and how to complete the requisite paperwork. She advises customers what property is available and will attempt to locate property sought by customers. In Mr. Analora's absence, she reviewed the paperwork brought in by customers; she handled mail, Fax transmissions, filing, telephone calls, etc. She filed weekly and monthly reports on GSA Form 2081 summarizing property orders and transfers processed by the AUO (Tr. 51-55).
5. The AUO is located at 450 North Grande Avenue, Tucson, Arizona. The building is an old, one-story structure, the main portion being occupied by the motor pool. The single entrance is into the motor pool office. Attached to the building is a four bay garage, the first bay of which had been converted into an office for the AUO (Tr. 55-76). AUO also has desk space in the main portion of the building where its aircraft specialist sits (Tr. 55). The Fax machine is in the motor pool area. Ms. Decker stated that the break room had been in the motor pool area (Tr. 55-56) but she did not say where it now is located.
6. Ms. Decker is a bellicose person, unhappy in her situation, and, feeling "put upon" by Respondent and "seeing" all co-workers as engaging in harassment of her, from 1991, filed a number of EEO charges against Respondent, alleging, inter alia, reprisal, sex, and age discrimination with respect to promotions, assignment of work outside her job description, denial of accommodation (flex time) for her medical condition, training and sexual harassment by co-workers.(11) (Tr. 33, 77). Hearing was held in August, 1993, and the decision issued on March 28, 1994.
7. As her charges moved toward hearing following issuance of a complaint of discrimination on March 26, 1993, Ms. Decker complained to Mr. Fred Huerta, her representative in the EEO proceeding at the time (Tr. 33, 83) and President of the Union, about the stress she was under at 450 North Grande (Tr. 35, 38, 39) and about the lack of privacy to confer in preparing her case for hearing (Tr. 83). The other employees at 450 North Grande complained to the Union of the stress they were under because of Ms. Decker, "They were all going to psychiatrists." (Tr. 35). Ms. Decker complained of harassment by her supervisor, Mr. Gary Analora (Tr. 70-71) and on May 24, 1993, all four of the employees at 450 North Grande, including Mr. Analora and the two motor pool employees, signed a letter to Respondent's Regional Counsel requesting that legal counsel be made available to them asserting, in part, that, "For the past three years we have been increasingly subjected to an extremely stressful and hostile work environment created by a single employee, who has threatened our personal safety and intimidated the entire office. She [Ms. Decker] has filed numerous EEO complaints and requested several IG investigations all with the singular intent of harassing her co-workers. . . ." (Res. Exh. 2).
Mr. Huerta suggested that the AUO be moved to the Federal Building (Tr. 39) where it had been located before being moved to 450 North Grande in 1985 (Tr. 28).
8. On June 16, 1993, Respondent notified Ms. Decker that she would be temporarily assigned to Room 7NA in the Tucson Federal Building (G.C. Exh. 2, Tr. 49-50) and on June 21, 1993, Ms. Decker was moved to the Federal Building (Tr. 48) where she remained until May 5, 1994, when she was moved back to 450 North Grande.
Ms. Decker's performance rating for the period ending March 1994, was "Highly successful", the same as it had been for the preceding year (Tr. 73). She lost no pay or benefits as the result of her temporary relocation to the Federal Building, which was estimated to be a little over a mile (Tr. 18); or about a mile and one half from 450 North Grande (Tr. 49), where the parking was free (Tr. 65); however, she asserted she had to pay for parking because no free parking was available in the vicinity of the Federal Building (Tr. 68). She stated that parking either was $2.00 per day (Tr. 76), which she paid for most of the period because of the uncertainty of her assignment to the Federal Building (Tr. 65), or $35.00 per month which she utilized for two or three months (Tr. 66). She further stated that from June 21, 1993, to May 5, 1994, she had been on leave 15 days and on official business two days (Tr. 66).
9. By letter dated June 17, 1993, Mr. Huerta notified Respondent, in part, as follows:
". . . This Union hereby notifies you that we wish to negotiate as appropriate on this matter as authorized by our current union agreement . . .
". . . This Union strongly emphasizes that no action should be taken . . . to change Carol Decker's work location until our negotiations are completed . . . ." (G.C. Exh. 4).
10. Respondent in a memorandum to Mr. Huerta the day before, June 16, 1993, had stated, in part, that,
"This morning I contacted you about management's intention to relocate Carol Decker's work station to the Tucson Federal Building in response to concerns expressed by you as her representative and by other employees about the level of interpersonal tension at her current work site. I noted that an EEOC hearing . . . is imminent, and that the GSA representative for that proceeding had suggested that providing Mr. Decker a private work station at the federal building would reduce the possibility of confrontations between opposing witnesses and afford Ms. Decker privacy for meetings and telephone calls with you.
"You did not indicate any disagreement with this plan to me. However, later I received a call from Property Management Branch Chief Peggy Lowndes reporting that you had telephoned her and stated that you wanted to negotiate the relocation. . .
" I am not inclined to agree that a temporary, local assignment of one employee gives rise to a bargaining obligation. . . ." (G.C. Exh. 3).
The Union and Respondent agree that Article 31, Section 3, which provides, "The employer will notify the Union prior to undertaking any move of bargaining unit employees involving a formal organizational component or substantial portion thereof. Space relocations will be based upon sound business principles", does not require union notification of a minor move, such as the move of one employee. Thus, Mr. Huerta testified on direct examination as follows:
"A . . . Article 31, Section 3, space relocation involving a large number of employees. It says there bargaining unit employees that's a substantial move.
"Q Why do you say it's a substantial move?
"A I had an occasion over two years to talk with certain parts of the detail section and actually it was Charles Paidock, which was a former president who negotiated and I asked him about the details and reassignments, and this came up. He told me, he said -- I asked him, 'What does this mean'. 'Mass deals like when the place has got thousands of employees, you send the whole unit out there'. I said, 'Does it involve minors?' 'No, does not include any minor employees'.
"We had a (sic) quite a discussion on details and this came up. And, he said. 'No, that's a major move', that is the Union's contention that it's only in a major organiza-tional move, not an individual move." (Tr. 26).
On cross-examination, Mr. Huerta testified further, as follows:
"Q . . . And, you testified that according to Mr. Paidock the language on page 70 concerning space relocation concerns only major moves and not minor moves.
"A Only major moves, right.
"Q And, a move of one employee would be a minor move?
"A Yeah, one or two or three would not be -- this would not apply." (Tr. 29).
But there they part company. Mr. Huerta, while conceding that there is no notification obligation under section 3 for moving one employee, nevertheless, asserted, "But there is an obligation under the conditions of employment, though . . . If it involved substantial conditions of employment changes then I think you would have to negotiate." (Tr. 29-30). On the other hand, Respondent asserts: "The Parties bargained and reached agreement on the subject of employee relocations . . . the express language of the provision . . . reasonably encompasses the subject matter sought to be bargained . . . and a reasonable reader would conclude that the provision settles the matter in dispute by specifying that notice is required only for major moves, and that minor moves need only be 'based on sound business principles.'" (Respondent's Brief, pp. 1-2). In addition, Respondent asserts, in part, "At the hearing, the charging party acknowledged that he had not asserted a bargaining right when Ms. Decker was relocated in 1991 . . . (Tr. 30, 31) and no example was offered of bargaining over a minor relocation anywhere in the nationwide unit of more than 4000 employees." (Respondent's Brief, p. 2).
I am aware that Article 31, Section 3, was also relied upon in General Services Administration, Tucson, Arizona and National Federation of Federal Employees, Local 81, Case No. 98-CA-10496, 107 ALJ Dec. Rep., May 28, 1993. In this earlier case, involving the same parties, as material here, during Ms. Decker's absence on detail, Respondent rearranged office space, changed Ms. Decker's desk, moved the break room into the motor pool area and moved an AUO employee from the motor pool area into the AUO space. Judge Oliver in his decision, issued March 1, 1993, stated, in pertinent part, as follows:
Respondent's position, that Article 31, Section 3 of the parties' agreement waives bargaining on such matters is rejected. This provision, on its face, refers to major moves or relocations and, by implication, would not require notice of minor moves, such as that of a section or unit of employees. It does not, on its face, address the matters involved here, that of changing an office configuration by relocating a break area, obtaining different desks, and changing seating assignments to accommodate an additional employee. No evidence of the bargaining history concerning Article 31, Section 3 was presented which would otherwise demonstrate that these matters were covered by the parties' agreement or the Union clearly and unmistakably waived its interest in the matter. On the contrary, the provisions of the contract that most closely refer to the matters in issue reinforce management's obligation to bargain. Article 31, Section 1, Space Redesigns, provides that, "The Employer will engage in negotiations as appropriate with the Union when redesigning space occupied by employer (sic). . . ." (Slip opinion, pp. 9-10) (Emphasis supplied).
The test no longer is "waiver" but, rather, ". . . whether a contract provision covers a matter in dispute." U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004, 1018 (1993) (hereinafter, "HHS-SSA"). Judge Oliver's comment that Article 31, Section 3, ". . . on its face, refers to major moves or relocations and, by implication, would not require notice of minor moves, such as that of a section or unit of employees", while dictum, certainly reflects his view that notice would not be required of a minor move. Nevertheless, Section 3 does specifically require notice to the Union before any move involving, "a formal organizational component or substantial portion thereof." What this means may, or may not, be clear to everyone but me; but I should think that the AUO, even though it consists of only three employees, is a formal organizational component; and that the motor pool, which, resumably, consists of only two employees, also is a formal organizational component. It would follow, if this perception were correct, that the number of employees involved is not necessarily controlling, or even material, if a move involves a formal organizational component or a substantial portion thereof. As no party has advanced any such contention and, to the contrary, the Union asserts that Section 3 concerns "Only major moves . . . one or two or three would not be -- this would not apply." (Tr. 29), I shall not pursue this perception.
Obviously, Article 31, which is entitled "Employee Space", covers precisely that and specifically addresses "Space Redesigns" (Sec. 1); "Space Assignment" (Sec. 2); "Space Relocation" (Sec. 3); etc. I conclude, in agreement with Respondent, that Section 3 "covers" the move of one or more employees because the matter of space relocation inseparably encompasses all moves of bargaining unit employees whether or not notice to the Union of the move is required. Contrary to General Counsel's dismissal of Article 22 (General Counsel's Brief, p. 20), it is entirely possible that this was either a detail or a reassignment. Nevertheless, at least as I view it, in determining, ". . . whether a contract provision covers a matter in dispute" (HHS-SSA, supra), the entire contract must be considered. Here, the Union pointed to Article 9, Section 4 subsection C, which provides as follows:
"C. The Union will be advised at the local level of proposed changes in personnel policies, practices, and working conditions initiated by local managers or initiated at a higher level but only affecting the local level. . . . Negotiations resulting from such changes will be conducted by the Local Parties." (G.C. Exh. 8, Section 4C).
The Union further asserts that because Respondent changed Ms. Decker's conditions of employment it was entitled to notice and an opportunity to negotiate.
Beyond doubt there must be a proper accommodation between an action "covered by" one provision of an agreement and a claimed obligation to bargain under another because of asserted change of conditions of employment lest the latter wholly swallow the former. For example, where the parties have negotiated concerning temporary assignments, an agency has no further obligation to bargain over temporary assignments whether it is considered a "waiver" because it is specifically addressed in the negotiated agreement, U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C. and Michigan Airway Facilities Sector, Belleville, Michigan, 44 FLRA 482 (1992) (hereinafter, "FAA, Belleville), or whether it is "covered by" the negotiated agreement, HHS-SSA, supra, notwithstanding that the mere temporary assignment is a change of conditions of employment.
Here, notice of the temporary move of Ms. Decker was "covered by" Article 31, Section 3 and, possibly, also by Article 22; but, wholly apart from the move of Ms. Decker, Respondent changed her conditions of employment in various ways, for example, at 450 North Grande she had all of the following equipment and facilities but at the Federal Building she had: no fax machine; no filing cabinet or files; no telephone answering machine; no chairs for visitors (customers); no manuals needed to perform her work; and there was no identification of her presence or location in the Federal Building for benefit of her customers, nor were customers apprised of her new location. Later, she was told she could use the fax machine in the GSA Building Management Office on the second floor; but she was separated from this machine by five floors, which required waiting for a slow elevator or walking five flights of stairs each way, and the Building Management Office did not notify her of the receipt of messages. It is unnecessary to decide whether each had more than a de minimis effect as it is clear that collectively the changes in her conditions of employment were more than de minimis. Department of Transportation, Federal Aviation Administration, Washington, D.C., 20 FLRA 474 (1950); Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 41 FLRA 690 (1991).
Because the Agreement specifically covers changes of conditions of employment, Respondent's unilateral action in implementing the changes without completing its obligation to bargain violated §§ 16(a)(5) and (1) of the Statute. But, see U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 49 FLRA 1444 (1994). In FAA, Belleville, supra, the only changes of conditions of employment resulted from the fact of the detail and details were "covered by" the agreement. Here, the changes of conditions of employment were not solely from the fact of the move. To the contrary, Ms. Decker could have been afforded a fax machine, a telephone answering machine, file cabinets and files, manuals, and her relocation to the Federal Building, temporary though it was, could have been made known to her customers in advance. In short, the move did not necessitate the changes. I fully agree with General Counsel that inasmuch as Article 9, Section 4E (G.C. Exh. 8, Art. 9, Section 4E) permits the Union ten working days after receipt of notice of a proposed change, Respondent's implementation on Monday, June 21, 1993, after notice to the Union on Wednesday, June 16, 1993 (G.C. Exh. 2), was contrary to the quite specific provisions of the Agreement, deprived the Union of the reasonable and negotiated time to prepare bargaining proposals and Respondent's premature, unilateral implementation relieved the Union of any obligation to submit bargaining proposals after Respondent's unilateral implementation.
As noted above, Ms. Decker was moved back to 450 North Grande on May 5, 1994, and, as a remedy, in addition to a cease and desist order and posting, General Counsel seeks reimbursement of Ms. Decker for parking fees she incurred in the amount of $385.00 (General Counsel's Brief, p. 24 and attached calculations). For the reasons set forth hereinafter, General Counsel's request for reimbursement of parking fees is denied.
General Counsel cites no authority to support his request for reimbursement of parking. Respondent asserts, inter alia, that, ". . . it is well-established under decisions of the Comptroller General that parking incidental to commuting is a personal expense." (Respondent's Brief, p. 3). Not only have I found no decision supporting General Counsel's request, but the decisions and statutory provisions appear to be contrary to General Counsel's request.
First, § 5596(b) of the Back Pay Act, 5 U.S.C. § 5596(b), provides, in relevant part, as follows:
"(b)(1) An employee . . . who . . . is found . . . to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee--
(A) is entitled, on correction of the personnel action, to receive . . .
(i) an amount equal to all or any part of the pay, allowances, or differentials, as applicable which the employee normally would have earned or received during the period if the personnel action had not occurred. . ."
Parking was not part of Ms. Decker's pay, allowances, or differentials. It was not a negotiated benefit. Indeed, she stated it was simply happenstance because North Grande is, " . . . a huge parking lot." (Tr. 65).
Second, the Authority, while holding that backpay may be in ordered where status quo ante relief is denied, Federal Aviation Administration, 42 FLRA 82 (1991), has made it clear that,
". . . backpay is ordered 'only where it is clear that the violation has resulted in a loss of some pay, allowance or differentials[.]' U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and U.S. Department of Health and Human Services, Social Security Administration, Hartford District Office, Hartford, Connecticut, 37 FLRA 278, 292 (1990) . . . ." Portsmouth Naval Shipyard Portsmouth, New Hampshire, 49 FLRA 1522, 1533 (1994).
Consequently, although the Authority has ordered monetary reimbursement for losses not covered by the Back Pay Act, ". . . when losses resulted from the agency's unlawful action and when such reimbursement was not shown to be inconsistent with another law." Department of the Army, U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, Indiana and Finance and Accounting Office for the Secretary of the Army, St. Louis, Missouri, 41 FLRA 885, 899 (1991); American Federation of Government Employees, SSA Council 220 v. FLRA, 840 F.2d 925, 930 (D.C. Cir. 1988), reimbursement for parking under the circumstances of this case would be contrary to the Back Pay Act.
Third, Ms. Decker's parking expenses were wholly related to her home-to-work travel and the Authority has held that reimbursement for such home-to-work travel expenses is prohibited. U.S. Department of the Treasury, Internal Revenue Service, Indianapolis District and National Treasury Employees Union, Chapter 49, 49 FLRA 55, 58, 59 (1994); American Federation of Government Employees, Local 3006 and U.S. Department of Defense, National Guard Bureau, State of Idaho, Office of the Adjutant General, 47 FLRA 155, 160 (1993).
Fourth, while Ms. Decker incurred parking expenses, it was not shown that Respondent's failure to complete bargaining on I&I [". . . General Counsel would concede that the June 21 relocation of Decker involved the exercise of a management right under Section 7106(a) of the Statute. . . ." (General Counsel's Brief, p. 14)] required such expense. Thus, as Respondent asserts (Respondent's Brief, p. 3), Ms. Decker could have continued to park at 450 North Grande and taken public transportation to the Federal Building. Indeed, the Union did not consider parking an issue when it proposed that the entire AUO - not just Ms. Decker - be moved to the Federal Building (Tr. 19).
Having found that Respondent violated §§ 16(a)(5) and (1) of the Statute, it is recommended that the Authority adopt the following:
Pursuant to § 2423.29 of the Rules and Regulations, 5 C.F.R. § 2423.29, and § 18 of the Statute, 5 U.S.C. § 7118, it is hereby ordered that the General Services Administration, Region 9, San Francisco, California, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain in good faith with the National Federation of Federal Employees, Local 81, (hereinafter, "Union"), the representative of bargaining unit employees in Nogales, Sells and Tucson, Arizona, before implementing changes in personnel policies, practices and working conditions, including the move of one or more employees if, apart from the move, conditions of employment are changed.
(b) Failing and refusing to comply with Article 9, Section 4 of the National Agreement of the General Services Administration and the National Federation of Federal Employees, executed December 26, 1991, and specifically including, but not limited to, failing to afford the Union not less than ten working days after receipt of notice of a proposal change to submit written proposals.
(c) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Post at its facilities in Nogales, Sells and Tucson, Arizona, 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, Administrator of Region 9, San Francisco, California, and shall be posted and maintained for 60 consecutive days thereafter, at Nogales, Sells and Tucson, Arizona, 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.
(b) Pursuant to section 2423.30 of the Rules and Regulations, 5 C.F.R. § 2423.30, notify the Regional Director of the Denver Region, Federal Labor Relations Authority, 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204-3581, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: April 28, 1995
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to bargain in good faith with the National Federation of Federal Employees, Local 81 (hereinafter, "Union") the representative of certain of our employees in Nogales, Sells and Tucson, Arizona, before implementing changes in personnel policies, practices and working conditions, including the move of one or more employees if, apart from the move, conditions of employment are changed.
WE WILL NOT fail or refuse to comply with Article 9, Section 4 of our National Agreement, executed December 26, 1991, and specifically including, but not limited to, failing to afford the Union not less than ten working days after receipt of notice of a proposed change to submit written proposals.
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 Federal Service Labor-Management Relations Statute.
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, Denver Region, whose address is: 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204-3581, and whose telephone number is: (303) 844-5224.
(If blank, the decision does not have footnotes.)
Authority's Footnotes Follow:
1. Chair Segal's dissenting opinion is set forth at the end of this decision.
2. By way of background, the Judge characterized the affected employee as a "bellicose person," "feeling 'put upon,'" and "seeing all co-workers as engaging in harassment of her[.]" Judge's Decision at 4. The Judge also admitted testimony related to co-workers' complaints. The General Counsel requests "the Authority to disregard" the Judge's characterizations of the employee, as well as his admission of testimony related to co-workers' complaints. Brief to Exceptions at 3. Having considered the Judge's characterizations and admission of testimony, we conclude that these matters are not relevant to our decision.
3. The Judge's statement that the Respondent violated the Statute "[b]ecause the Agreement [Article 9] specifically covers changes [in] conditions of employment" is unclear. Judge's Decision at 10. In this regard, the "covered by" doctrine provides a defense to an alleged unlawful refusal to bargain, not a basis for finding an obligation to bargain. See U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 49 FLRA 1444, 1453-54 (1994).
4. In its exceptions, the General Counsel requests, among other things, that the Authority order the Respondent to "post an appropriate Notice to All Employees signed by the Respondent's Regional Administrator[.]" Brief to Exceptions at 6-7. Contrary to the Respondent's construction of this request, we do not read it as an exception. Rather, we read it as requesting that the Authority retain the wording already included in the Judge's recommended order directing the Regional Administrator to sign the notice.
5. Indeed, we conclude that the issues involved in this case are precisely the sort that should be, and could have been, resolved without the necessity for full collective bargaining (or litigation).
6. The employee testified: "From my own personal knowledge I know those manuals pretty well so that isn't the problem. It's when my customers call and I quote . . . from a manual and . . . [they] [sic] request . . . "Would you please fax me a copy or mail me [a] copy . . . ." Transcript at 61
7. Although the Respondent challenges the impact of the individual changes in the affected employee's conditions of employment, it does not address the impact of the changes viewed collectively.
8. For example, the Respondent asserts that the employee "apparently never took the simple step of asking" for the office equipment that was not provided at the new location. Cross-exceptions and Opposition at 2.
9. The Authority's decision in DOL, 44 FLRA 988, on which the General Counsel relies, was reversed in Immigration and Naturalization Service, Los Angeles District, Los Angeles, California, 52 FLRA 103 (1996). The Authority based this reversal on the court's decision in Fort Benjamin Harrison. Id. at 105-106.
ALJ's Footnotes Follow:
1. For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, i.e., Section 7116(a)(5) will be referred to, simply, as "16(a)(5)".
2. In addition, she raised and litigated her temporary removal from 450 North Grande Avenue to the Federal Building at 300 West Congress, this being the same move involved in this proceeding (Tr. 78). However, the issue was raised as an EEO matter, not as a grievance under the negotiated grievance procedure.