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46:0396(34)CA
The decision of the Authority follows:
46 FLRA No. 34
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
DEPARTMENT OF HEALTH AND HUMAN SERVICES
REGION IV, OFFICE OF CIVIL RIGHTS
ATLANTA, GEORGIA
(Respondent)
and
NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 210
(Charging Party)
4-CA-10346
DECISION AND ORDER
October 30, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge. The Charging Party and the General Counsel filed oppositions to the Respondent's exceptions. The General Counsel also filed cross-exceptions to the Judge's decision, and the Respondent filed an opposition to the General Counsel's cross-exceptions.
The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing the reduction and renovation of certain office space without completing bargaining with the Union on the substance or impact and implementation of the changes; and section 7116(a)(1) and (6) of the Statute because, by implementing the changes after the Union had invoked the services of the Federal Service Impasses Panel (the Panel), it improperly failed to maintain the status quo. The Judge found that the Respondent violated the Statute by failing to complete bargaining with the Union over the impact and implementation of its decision to reduce its office space, and by failing to maintain the status quo after the Union had invoked the services of the Panel. As a remedy, the Judge recommended that the Authority order the Respondent, upon the Union's request, to reconstruct certain of its office space and bargain over the impact and implementation of its decision to reduce the office space.
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 and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order.
The Judge concluded that, "while the [Respondent's] decision to reduce [office space] was nonnegotiable under the Statute since the action was taken to conform to a Government-wide regulation, Respondent nevertheless was obligated to negotiate with the Union on the impact and implementation of the change." Judge's Decision at 13. The General Counsel contends that the Judge erred in failing to find that the Respondent was obligated to negotiate over the substance as well as the impact and implementation of the allocation of space.
It is undisputed that the Respondent's decision to reduce its office space was taken to conform to a Government-wide regulation and was nonnegotiable. However, the issue is not whether the Respondent's decision to reduce the space was negotiable, but rather whether the Respondent was obligated to bargain over the impact and implementation of its decision to reduce its office space--that is, how to allocate the reduced space and related matters.
As a result of the requirement to reduce space, the Respondent presented its proposed floor plan for the allocation of space to the Union and the Union responded with its own proposed floor plan. The Judge found that the basic issue "concern[ed] unit employees' work environment," and that the Union's proposed floor plan was "a negotiable condition of employment." Id. at 16-17. We agree. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland et al., 36 FLRA 655, 668 (1990). Accordingly, we find that by implementing its decision to reduce office space without completing bargaining with the Union over how to allocate the reduced space and related matters, the Respondent committed an unfair labor practice. Further, we agree with the Judge's conclusion that the "Respondent improperly implemented the renovations while the parties['] impasse was pending before the [Panel]." Id. at 15.
II. Remedy
The Judge found that "a remedy calling for a prospective bargaining order without a return to the status quo ante in some measure in this case would render meaningless the obligation to bargain." Id. at 26. The Judge further found that, "[t]o effectuate the purposes and policies of the Statute[,] the parties should be returned to the office arrangement in existence when Respondent engaged in the illegal conduct found herein so that in future bargaining on the matter the parties can proceed on an equal footing." Id. The Judge noted that "[w]hat appears to be the greatest concern to the Union is the placement of enclosed offices on the window-walls." Id. at 27. For the reasons set forth at pages 27-28 of his decision, the Judge determined that in order "to return the office configuration as closely as possible in its reduced state to the previous configuration[,]" the Respondent should be ordered to "remove the enclosures on the two Division Director's offices." Id. at 28. Additionally, the Judge stated that "[t]hereafter, the parties may continue negotiations on the reconstruction until the matter is ultimately resolved." Id.
Citing cases in which an agency failed to fulfill its obligation to bargain over the substance of a decision, the General Counsel contends that a status quo ante remedy is warranted in this case. The General Counsel contends that the Judge should have recommended that the Respondent be ordered to remove "all four (instead of two) of the new supervisors' offices." General Counsel's Brief at 24. The Respondent also excepts to the Judge's recommended order, arguing that, if a violation of the Statute is found, the Authority should grant a prospective bargaining order or, at most, an order requiring that the parties give retroactive effect to any agreement reached in bargaining.
Initially, we note that it was not possible for the Respondent to return its office space to precisely as it existed prior to implementation. When it submitted its proposed remodeling plan to the Union, the Respondent was already mandated to reduce its office space by 1745 square feet. Even the Union's original proposal "never disputed or sought to encroach upon [the Respondent's] right [under Government-wide regulations] to downsize its office space." General Counsel's Brief at 21. The 1745 square feet of space had already been relinquished when the Judge considered the appropriate remedy and the "General Counsel does not suggest that [the Respondent] return to its pre-December 1990 square footage . . . ." General Counsel's Brief to the Judge at 23.
In determining how to make the office configuration in its reduced state comparable to what it was in its pre-reduced state, the Judge recommended that the Respondent be ordered to make certain changes in the configuration of the reduced space. In particular, the Judge recommended that the Respondent be ordered to remove the enclosures on the two Division Director's offices. The Judge found that these changes would return the office configuration as closely as possible in its reduced state to the previous configuration.
In our view, the Judge's recommended order as to the reallocation of space makes the office configuration in its reduced state comparable to what it was in its pre-reduced state and best effectuates the purposes and policies of the Statute in the circumstances of this case. The General Counsel does not demonstrate how, and it is not apparent to us that, the Judge's recommended order fails to adequately remedy the Respondent's unfair labor practices in this case. We note that the General Counsel's reliance on cases in which an agency failed to fulfill its obligation to bargain over the substance of a decision is misplaced because, as the Judge found, the Respondent was obligated to bargain over the impact and implementation of its decision to reduce space. Accordingly, we find that the Judge's recommended order is appropriate to remedy the unfair labor practices committed in this case.
III. Order
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of Health and Human Services, Region IV, Office of Civil Rights, Atlanta, Georgia, shall:
1. Cease and desist from:
(a) Unilaterally implementing the decision to reduce the office space for the Office of Civil Rights without completing bargaining with the National Treasury Employees Union, Chapter 210, the agent of the employees' exclusive representative, on the procedures to be observed in implementing the decision and the impact of such decision on unit employees' conditions of employment.
(b) Unilaterally implementing its decision to reduce the office space for the Office of Civil Rights while an impasse in negotiations is pending resolution before the Federal Service Impasses Panel or otherwise failing or refusing to cooperate in impasse procedures as required by the Federal Service Labor-Management Relations Statute.
(c) In any like or related manner, interfering with, restraining, or coercing its 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) Upon request of the National Treasury Employees Union, Chapter 210, the agent of the employees' exclusive representative, remove the walls constructed in December 1990 enclosing the two Division Directors' offices and negotiate with Chapter 210 on the procedures to be observed in implementing the decision to reduce the office space for the Office of Civil Rights and the impact of such decision on unit employees' conditions of employment.
(b) Post at its Atlanta, Georgia Regional Office 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 Regional Manager 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, Atlanta, Georgia Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
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 NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally implement the decision to reduce the office space for the Office of Civil Rights without completing bargaining with the National Treasury Employees Union, Chapter 210, the agent of the employees' exclusive representative, on the procedures to be observed in implementing the decision and the impact of such decision on unit employees' conditions of employment.
WE WILL NOT unilaterally implement the decision to reduce the office space for the Office of Civil Rights while an impasse in negotiations is pending resolution before the Federal Service Impasses Panel or otherwise fail or refuse to cooperate in impasse procedures as required by the Federal Service Labor-Management Relations Statute.
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.
WE WILL upon request of the National Treasury Employees Union, Chapter 210, the agent of the employees' exclusive representative, remove the walls constructed in December 1990 enclosing the two Division Directors offices and negotiate with Chapter 210 on the procedures to be observed in implementing the decision to reduce the office space for the Office of Civil Rights and the impact of such decision on unit employees' conditions of employment.
______________________________
(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 any of its provisions, they may communicate directly with the Regional Director, Atlanta, Georgia Regional Office, Federal Labor Relations Authority, whose address is: 1371 Peachtree Street, NE., Suite 122, Atlanta, GA 30367, and whose telephone number is: (404) 347-2324.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)