25:0787(64)CA - EPA and EPA Region II and AFGE -- 1987 FLRAdec CA
[ 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.