[ v25 p787 ]
25:0787(64)CA
The decision of the Authority follows:
25 FLRA No. 64
ENVIRONMENTAL PROTECTION AGENCY
AND ENVIRONMENTAL PROTECTION AGENCY
REGION II
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 2-CA-20488
(20 FLRA No. 76)
DECISION AND ORDER ON REMAND
I. Introduction
This case is before the Authority pursuant to a remand from the
United States Court of Appeals for the District of Columbia Circuit.
The question before us is whether the Respondent (Agency) committed an
unfair labor practice under the Federal Service Labor-Management
Relations Statute (the Statute) when it unilaterially relocated 12 unit
employees in its Water Resources Section, Technical Resources Branch,
Water Division and refused the Union's request to bargain on the
procedures to be used in the implementation of the change and any
appropriate arrangements for employees adversely affected by the change.
For the reasons stated below, we conclude that the Agency violated
the Statute as alleged, and reverse the Authority's previous decision in
this matter.
II. Procedural Background
In a previous decision in this case, Environmental Protection Agency
and Environmental Protection Agency, Region II, 20 FLRA No. 76 (1985),
the Authority, relying on Department of Health and Human Services,
Social Security Administration, Region V, Chicago, Illinois, 19 FLRA No.
101 (1985), held that the Agency did not commit an unfair labor practice
by refusing to bargain with the Union. The Authority held that the
Agency had no statutory duty to bargain over the impact and
implementation of its decision to relocate 12 employees.
The Charging Party (Union) petitioned the court for review of the
Authority's decision. While that ligigation was pending, we issued our
decision in Department of Health and Human Services, Social Security
Administration, 24 FLRA No. 42 (1986), petition for review filed sub
nom. American Federation of Government Employees, Local 1760 v. FLRA,
No. 86-1702 (D.C. Cir. Dec. 17, 1986) in which we reassessed and
modified the de minimis standard set out in Social Security
Administration, Region V. Thereafter, we requested remand of the
instant case for further proceedings consistent with Department of
Health and Human Services, Social Security Administration, 24 FLRA No.
42. The court remanded the record on December 30, 1986 for that
purpose.
III. History of the Case
The complaint in this case alleged that the Agency refused to
negotiate over the impact and implementation of its decision to relocate
unit employees and reconfigure their space; and that the decision was
implemented without affording the Union an opportunity to bargain. The
Union asserted that the Agency's failure and refusal to negotiate
violated section 7116(a)(1) and (5) of the Statute.
The Administrative Law Judge noted that it was undisputed that the
decision to relocate the employees was not negotiable. However, he held
that the Agency was obligated to bargain with the Union over the impact
and implementation of its decision to relocate employees since the
relocation resulted in an impact on bargaining unit employees which was
more than de minimis. The Judge concluded that the Agency violated
section 7116(a)(1) and (5) of the Statute when it failed and refused to
bargain with the Union and ordered the Agency to bargain over the impact
and implementation of its decision. The Agency filed exceptions with
the Authority to the Judge's determination that the change resulted in
an impact which was more than de minimis. The General Counsel excepted
to the Judge's failure to provide a remedy which allowed retroactive
application of agreements reached in negotiations.
On November 13, 1985, the Authority issued its Decision and Order in
Environmental Protection Agency and Environmental Protection Agency,
Region II, 20 FLRA No. 76 (1985). The Authority found, contrary to the
Judge, that the impact or reasonably foreseeable impact of the
relocation on unit employees' conditions of employment was no more than
de minimis, and concluded that the Agency had no obligation to bargain
over the procedures to be observed in implementing the change and
appropriate arrangements for employees who were adversely affected by
the relocation. The Authority stated that although the relocation
resulted in a permanent change in working conditions, less office and
storage space, and a noisier work environment, it affected only 12
individuals in one division who are part of a nationwide consolidated
unit. The Authority further noted that (1) the affected employees
remained in the same section and division and maintained their grade
levels, pay rates and hours of work and (2) there was no demonstrated
bargaining history or past practice of handling similar changes.
IV. Analysis on Remand
In Department of Health and Human Services, Social Security
Administration, 24 FLRA No. 42 (1986), we reassessed and modified the de
minimis standard previously used to identify changes in conditions of
employment that require bargaining. We stated that in order to
determine whether a change in conditions of employment requires
bargaining, we would carefully examine the pertinent facts and
circumstances presented in each case; and that in examining the record,
principal emphasis would be placed on such general areas of
consideration as the nature and extent of the effect or reasonably
foreseeable effect of the change on conditions of employment. We also
stated that equitable considerations would be taken into account in
balancing the various interests involved; that the number of affected
employees and the parties' bargaining history would be given limited
application; and that the size of the bargaining unit would no longer
be a consideration.
Applying the revised standard to the facts and circumstances in this
case, we conclude that the Agency was obligated under section 7106(b)(2)
and(3) of the Statute to bargain with the Union over the impact and
implementation of its decision to unilaterally relocate 12 employees.
See U.S. Department of Labor, Occupational Safety and Health
Administration, 24 FLRA No. 74, (1986); Veterans Administration, West
Los Angeles Medical Center, Los Angeles, California, 24 FLRA No. 73
(1986). As a result of the move, employees' conditions of employment
were altered. The new environment differed materially from the old
environment. The size of the offices was changed so that employees
worked in smaller rooms; the available space for storing documents and
files was much less; and the change produced cramped working
conditions. The record also reveals that there is much more noise in
the new location. Despite the relatively short distance of the move,
the relocation of the Agency's Water Resources Section significantly
altered the employees work environment. In these circumstances, we find
that the Agency had a statutory obligation to meet with the Union as
requested and engage in negotiations regarding relocation procedures and
attempts to minimize the effect of the move on the 12 employees
involved. We therefore conclude that the Agency violated section
7116(a)(1) and (5) of the Statute when it failed and refused to bargain
with the Union over the procedures to be used in the implementation of
its decision to relocate unit employees and any appropriate arrangements
for employees adversely affected by the relocation.
V. Remedy
The General Counsel filed exceptions to the Administrative Law
Judge's failure to provide a remedy which would permit the parties to
give retroactive effect, to the extent possible, to agreements reached
as the result of negotiations concerning the impact and implementation
of the relocation of unit employees in the Water Resources Section,
Technical Resource Branch. /*/
The Judge found that impact and implementation bargaining -- in the
absence of a status quo ante remedy -- is prospective in nature. Since
the General Counsel did not seek a status quo ante remedy, the Judge
determined that any negotiations relating to the adverse effects cited
by the Union could not be retroactively implemented and refused to
recommend the requested bargaining order.
We find for the reasons stated in Environmental Protection Agency and
American Federation of Government Employees, 21 FLRA No. 98 (1986), that
a prospective bargaining order will best effectuate the purposes and
policies of the Statute. A prospective bargaining order is neither
inadequate nor inherently restrictive of the parties' rights to address
the effects on unit employees of changes already made. Rather, it
allows the parties the flexibility to bargain freely about how past
actions may have affected employees and the opportunity to agree to
retroactive application of the agreement. See Veterans Administration,
Washington, D.C. and Veterans Administration Medical and Regional Office
Center, Fargo, North Dakota, 24 FLRA No. 3 (1986).
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the rulings of the
Judge made at the hearing, find that no prejudicial error was committed,
and thus affirm those rulings. We have considered the Judge's decision
and the entire record in this case in light of our decision in
Department of Health and Human Services, Social Security Administration,
24 FLRA No. 42 (1986), and adopt the Judge's findings, conclusions and
order to the extent that they are consistent with our decision in this
case.
We conclude that the Agency violated section 7116(a)(1) and (5) of
the Statute when it failed and refused to bargain with the Union over
the impact and implementation of its decision to relocate unit
employees.
ORDER
The Environmental Protection Agency, Region II, shall:
1. Cease and desist from:
(a) Failing and refusing to negotiate in good faith with the American
Federation of Government Employees, AFL-CIO, the exclusive
representative of its employees, to the extent that it is not
inconsistent with Federal law or any Government-wide rule or regulation,
concerning procedures and appropriate arrangements for employees
adversely affected by the relocation of unit employees in the Water
Resources Section, Technical Resources Branch, Water Division, Region
II.
(b) Relocating its unit employees without first notifying the
American Federation of Government Employees AFL-CIO, the exclusive
representative of its employees, and affording it the opportunity to
negotiate, to the extent that it is not inconsistent with Federal law or
any Government-wide rule or regulation, concerning the impact and
implementation of any such relocation of unit employees.
(c) In any like or related manner interfering with, restraining or
coercing employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
policies of the Statute:
(a) Upon request, negotiate in good faith with the American
Federation of Government Employees, AFL-CIO, the exclusive
representative of its employees, to the extent that it is not
inconsistent with Federal law or any Government-wide rule or regulation,
concerning procedures and appropriate arrangements for employees
adversely affected by the relocation of unit employees in the Water
Resources Section, Technical Resources Branch, Water Division, Region
II.
(b) Notify the American Federation of Government Employees, AFL-CIO,
the exclusive representative of its employees, of any intention to
relocate its unit employees, and afford it the ooportunity to negotiate,
to the extent that it is not inconsistent with Federal law or any
Government-wide rule or regulation, concerning procedures associated
with the relocation and any appropriate arrangements for employees
adversely affected by any relocation of unit employees.
(c) Post at its facilities in Region II, New York, New York, copies
of the attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon reciept of such forms, they shall be signed
by the Director of the Water Management Division, Environmental
Protection Agency, 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.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region II, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C. February 19, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) For the reasons stated by the Authority in 20 FLRA No. 76, we
reject the Agency's contention that the General Counsel's exception
should be dismissed on the basis of an improper citation to the
Authority's Rules and Regulations.
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-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to negotiate in good faith with the American
Federation of Government Employees, AFL-CIO, the exclusive
representative of our employees, to the extent that it is not
inconsistent with Federal law or any Government-wide rule or regulation,
concerning procedures and appropriate arrangements for employees
adversely affected by the relocation of the Water Resources Section,
Technical Resources Branch, Water Division, Region II.
WE WILL NOT relocate our employees without first notifying the
American Federation of Government Employees, AFL-CIO, the exclusive
representative of our employees, and affording it the opportunity to
negotiate, to the extent that it is not inconsistent with Federal law or
any Government-wide rule or regulation, concerning procedures associated
with the relocation and any appropriate arrangements for employees
adversely affected by any relocation of unit employees.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL, upon request, negotiate in good faith with the American
Federation of Government Employees, AFL-CIO, the exclusive
representative of our employees, to the extent that it is not
inconsistent with Federal law or any Government-wide rule or regulation,
concerning the impact and implementation of the relocation of unit
employees in the Water Resources Section, Technical Resources Branch,
Water Division, Region II.
(Agency)
Dated:
Director, Water Management
Division
Environmental Protection Agency
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 for the Federal Labor Relations Authority, whose address is:
26 Federal Plaza, Room 3700, New York, New York 10278, and whose
telephone number is: 212-264-4934.