19:0328(47)CA - SSA, Office of Hearings and Appeals, Region II, NY, NY and AFGE Local 1760 -- 1985 FLRAdec CA
[ v19 p328 ]
19:0328(47)CA
The decision of the Authority follows:
19 FLRA No. 47
SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
REGION II
NEW YORK, NEW YORK
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1760
Charging Party
Case Nos. 12-CA-20179
12-CA-20355
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices alleged in the consolidated complaint,
and recommending that it be ordered to cease and desist therefrom and
take certain affirmative action. The Judge found further that the
Respondent had not engaged in certain other unfair labor practices
alleged in the consolidated complaint, and recommended that those
portions of the consolidated complaint be dismissed. Thereafter, the
Respondent filed exceptions to the Judge's Decision with a supporting
brief, and the General Counsel filed an opposition to the Respondent's
exceptions and cross-exceptions with a supporting brief.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order.
The Authority concludes, in agreement with the Judge, that the
Respondent violated section 7116(a)(1) and (5) of the Statute when it
implemented its office relocation without negotiating with the American
Federation of Government Employees, AFL-CIO, Local 1760, its employees'
exclusive representative, over certain negotiable proposals regarding
the procedures to be observed and appropriate arrangements for employees
adversely affected by the office relocation. In so concluding, the
Authority emphasizes that such a duty to bargain arises where an agency,
in exercising a management right under the Statute, changes conditions
of employment of unit employees if such change results in more than a de
minimis impact upon unit employees or such impact is reasonably
foreseeable. See U.S. Government Printing Office, 13 FLRA 203 (1983);
Department of Health and Human Services, Social Security Administration,
Chicago, Region, 15 FLRA No. 174 (1984); and U.S. Government Printing
Office, 17 FLRA No. 38 (1985). In this regard, the Authority finds, in
the circumstances of this case, that the relocation of the Office of
Hearings and Appeals of Region II of the SSA from Mineola, N.Y. to
Hempstead, N.Y., a distance of four or five miles, had more than a de
minimis impact upon the unit employees involved and such impact is
reasonably foreseeable.
The Authority further finds, in agreement with the Judge, that the
Respondent did not violate section 7116(a)(1), (5) and (6) of the
Statute when it exercised its management right to effectuate the office
relocation while certain additional proposals dealing with the
procedures to be observed and appropriate arrangements for employees
adversely affected by the implementation of the relocation were being
negotiated with the assistance of a Federal Mediation and Conciliation
Service (FMCS) mediator. In this regard, the record indicates that the
Respondent gave the Union adequate notice of its intention to relocate;
bargained with the Union to impasse over these proposals; agreed to
FMCS assistance; effectuated the relocation according to its announced
timetable to avoid paying double rent; and thereafter continued to seek
resolution of the impasse by meeting with the mediator and participating
in proceedings before the Federal Service Impasses Panel. Thus, in all
of these circumstances, the Authority finds that the Respondent did not
violate the Statute when it effectuated the office relocation to avoid
unnecessary Government expense while continuing to cooperate with the
mediation process.
Finally, the Authority agrees with the Judge's conclusion that the
Union's request for data regarding additional expenses by the Respondent
for office fixtures and amenities did not bear directly on bargainable
issues and therefore such request for information was not necessary to
the negotiations involved herein. In adopting the Judge's factual
finding in this regard, the Authority does not rely on the Judge's
statement at p. 15 of this Decision that the information requested was
not "presumptively relevant." Rather, section 7114(b)(4)(B) of the
Statute requires that the information requested be "reasonably available
and necessary," /1A/ a determination which must be made on a
case-by-case basis. See, e.g., Army and Air Force Exchange Service
(AAFES), Fort Carson, Colorado, 17 FLRA No. 92 (1985); Bureau of
Alcohol, Tobacco and Firearms, National Office, Washington, D.C., 18
FLRA No. 74 (1985).
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Social Security Administration, Office of Hearings and Appeals,
Region II, New York, New York, shall:
1. Cease and desist from:
(a) In the future, relocating or moving its offices and employees
without first notifying the American Federation of Government Employees,
AFL-CIO, Local 1760, the exclusive representative of its employees, and
affording such representative the opportunity to negotiate concerning
the procedures to be observed in such relocation and appropriate
arrangements for employees adversely affected by such action.
(b) Refusing to negotiate in good faith with the American Federation
of Government Employees, AFL-CIO, Local 1760, the exclusive
representative of its employees, as to the procedures to be observed in
implementing its office relocation from Mineola to Hempstead, New York,
and appropriate arrangements for employees adversely affected thereby,
including, but not limited to, Proposals #1, 8C, 9, 10, 12, 13, 15, 16
and 22, submitted to it by the exclusive representative.
(c) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Notify the American Federation of Government Employees, AFL-CIO,
Local 1760, the exclusive representative of its employees, of any
intention to relocate its offices and employees, and afford such
representative the opportunity to negotiate concerning the procedures to
be observed in the relocation and appropriate arrangements for employees
adversely affected by such action.
(b) Upon request, negotiate in good faith with the American
Federation of Government Employees, AFL-CIO, Local 1760, the exclusive
representative of its employees, as to the procedures to be observed in
implementing its relocation from Mineola to Hempstead, New York, and
appropriate arrangements for employees adversely affected by the
relocation, including, but not limited to, Proposals #1, 8C, 9, 10, 12,
13, 15, 16, and 22, submitted to it by the exclusive representative.
(c) Post at its facilities in Hempstead, New York, 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 of the Hempstead, New York office, or a designee, and
shall be posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be
taken to ensure that such Notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director, Region I, 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.
IT IS FURTHER ORDERED that the portion of the consolidated complaint
found not violative of the Statute be, and it hereby is, dismissed.
Issued, Washington, D.C., July 26, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT in the future relocate or move our offices and employees,
without first notifying the American Federation of Government Employees,
AFL-CIO, Local 1760, the exclusive representative of our employees, and
affording such representative the opportunity to negotiate concerning
the procedures to be observed in such relocation and appropriate
arrangements for employees adversely affected by such action. WE WILL
NOT refuse to negotiate in good faith with the American Federation of
Government Employees, AFL-CIO, Local 1760, the exclusive representative
of our employees, as to the procedures to be observed in implementing
our office relocation from Mineola to Hempstead, New York, and
appropriate arrangements for employees adversely affected thereby,
including but not limited to, Proposals #1, 8C, 9, 10, 12, 13, 15, 16
and 22, submitted to us by the exclusive representative. 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 notify the American
Federation of Government Employees, AFL-CIO, Local 1760, the exclusive
representative of our employees, of any intention to relocate our
offices and employees, and afford such representative the opportunity to
negotiate concerning the procedures to be observed in the relocation and
appropriate arrangements for employees adversely affected by such
action. WE WILL, upon request, negotiate in good faith with the
American Federation of Government Employees, AFL-CIO, Local 1760, the
exclusive representative of our employees, as to the procedures to be
observed in implementing our relocation from Mineola to Hempstead, New
York, and appropriate arrangements for employees adversely affected by
the relocation, including, but not limited to, Proposals #1, 8C, 9, 10,
12, 13, 15, 16 and 22, submitted to us by the exclusive representative.
(Activity)
Dated: . . . By: (Signature) (Title) This Notice must remain posted
for 60 consecutive days from the date of posting, and must not be
altered, defaced, or covered by any other material. If employees have
any questions concerning this Notice or compliance with its provisions,
they may communicate directly with the Regional Director, Region I,
Federal Labor Relations Authority, whose address is: 441 Stuart Street,
9th Floor, Boston, MA 02116 and whose telephone number is: (617)
223-0920.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case Nos. 12-CA-20179, 12-CA-20355
Stephen Sunshine, Esq.
Elliott Glassman,
For the Respondent
Marilyn Z. Roth, Esq.
For the General Counsel
James Armet
For the Charging Party
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to an Order Consolidating Cases, Complaint and Notice of
Hearing issued on October 29, 1982 by the Regional Director for the
Federal Labor Relations Authority, Boston, Massachusetts, a hearing was
held before the undersigned on December 16, 1982 at New York, NY.
This proceeding arises under the Federal Service Labor-Management
Relations Statute (hereinafter called the Statute). It is based on a
charge filed on January 5, 1982 and a charge filed on April 12, 1982
both filed by American Federation of Government Employees, AFL-CIO,
Local 1760 (hereinafter called the Union) against Social Security
Administration, Office of Hearings and Appeals, Region II, New York, New
York (hereinafter called Respondent).
The Complaint herein alleged, in substance, that Respondent (a) since
on or about September 11, 1981 refused to bargain regarding the impact
and implementation of a relocation of the Mineola, New York Hearing
office to Hempstead, New York; (b) on or about January 19, 1982
unilaterally changed conditions of employment of relocating the Mineola
Hearing office to Hempstead without affording the Union an opportunity
to bargain regarding impact and implementation of such change; (c)
failed and refused to cooperate in impasse procedures by relocating the
Mineola Hearing office to Hempstead on January 19, 1982 while impact and
implementation bargaining was in process with the assistance of the
Federal Mediation and Conciliation Service; (d) on or about November
12, and thereafter refused to furnish the Union with correspondence
between it and General Services Administration and the landlord known as
250 Fulton Avenue, Hempstead, New York, including the lease and any
memoranda regarding additional expenditures by it for office fixtures
and amenities-- all in violation of Section 7116(a)(1), (5), (6), and
(8) of the Statute.
Respondent filed an Answer dated November 19, 1982 which denied the
essential allegations of the complaint as well as the commission of any
unfair labor practice.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter briefs were filed with the
undersigned which have been duly considered.
Upon the entire record in this case, from my observation of the
witnesses and their demeanor, and from all the testimony and evidence
adduced at the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein the American Federation of
Government Employees, AFL-CIO, has been, and still is, the certified
exclusive bargaining representative of a consolidated nationwide unit of
professional employees and a unit of nonprofessional employees of the
Social Security Administration, including all employees in the Office of
Hearings and Appeals, New York Region.
2. At all times material herein, American Federation of Government
Employees, AFL-CIO, Local 1760, has been, and still is, the designated
representative of the American federation of Government Employees,
AFL-CIO, and has been so recognized by Respondent, for the purpose of
collective bargaining on behalf of employees at the Office of Hearings
and Appeals in the New York, New York Region as to matters involving
conditions of employment thereat.
3. Both the Social Security Administration and American Federation
of Government Employees, AFL-CIO are parties to an agreement covering
all nationwide unit employees, as aforesaid, and the said agreement is
effective by its terms on June 11, 1982 for a period of three years.
4. By letter dated November 19, 1980, Alfred F. Agresti,
Respondent's Facilities Management Specialist, notified Herbert
Collender, President of the Union, that Respondent would be moving and
relocating its office from Mineola, New York to Hempstead, New York.
5. James Armet, /1/ Vice-President for Administration of the Union,
responded in a letter dated December 3, 1980 wherein he requested
bargaining on the impact of the move on unit employees. The Union
official also requested copies of all materials, documents, plans,
diagrams, and contracts regarding the office and its relocation.
6. In a letter dated July 24, 1981, Collender wrote L. Charles
Leonard, Respondent's Regional Chief Administrative Law Judge. The
Union agent reaffirmed the Union's demand to bargain concerning the
procedure management will observe in implementing its decision to
relocate from Mineola to Hempstead, as well as the arrangements for
employees adversely affected by the decision. Collender also requested
the following: (a) the lease agreement for the new location; (b)
schedule for movement of staff and equipment; (c) floor outline
diagram; (d) other relevant data which would facilitate the collective
bargaining process.
7. Respondent's representative Agresti wrote Collender on July 27,
1981 that the Office of Hearings and Appeals would relocate from
Mineola, New York to 250 Fulton Avenue, Hempstead, New York /2/ within
90 days; that the Union agent should submit any comments regarding the
move by August 28, 1981.
8. Armet replied to Leonard in a letter dated August 6, 1981 wherein
the Union official refused to state comments but insisted on bargaining
regarding the procedures and arrangements adversely affecting employees.
He also submitted 22 Union proposals which the Union felt impacted upon
the employees as a result of the move, and these proposals involved
various conditions of employment which the bargaining agent desired to
put into effect at the Hempstead location. (GC Exh. 9B).
9. In a letter dated August 6, 1981 Agresti notified Collender that
Respondent had requested GSA to furnish a copy of the lease which, upon
receipt, would be forwarded to the Union. He further stated that when
the schedule for moving staff and equipment is developed, the
information would be given to the Union; that floor plans were sent to
Armet on December 22, 1980; and that Collender should specify
additional relevant data requested from management.
10. On September 11, 1981 the parties met and went over the Union's
proposals generally. Management's representative, Stephen Sunshine,
commented that generally most of them were non-negotiable.
11. At a meeting between the parties on October 9, 1981 the Union
hand delivered a written request to management for "all correspondence
between OHA management, the General Services Administration and the
landlord of the premises known as 250 Fulton Avenue, Hempstead, New
York, relative to OHA's occupancy of the subject space." The request
specified that the foregoing included the lease and any memorandum
regarding additional expenses by OHA for office fixtures and amenities.
At this meeting the parties discussed Union Proposal #1 which was as
follows:
"the employer guarantees that the premises located at 250
Fulton Avenue, Hempstead, New York, are free from all health and
safety hazards. Furthermore, management warrants that they will
maintain said premises in such fashion at all times."
Armet testified, and I find, that Sunshine stated GSA is responsible for
any type of building maintenance or ensuring health and safety of the
premises; that the agency would provide the same positions vis-a-vis
health and safety as exists at Mineola. Since there would be no
changes, Sunshine asserted the proposal was outside the scope of
bargaining. He also stated that the proposal was not bargainable at the
local level since it was on the table at national negotiations.
12. By letter dated October 15, 1981, Respondent advised Armet that,
in respect to Proposal #1, the agency contended: (a) it exceeded the
scope of impact and implementation bargaining, and (b) the subject
matter is encompassed by negotiations at the national level.
Accordingly, the Respondent did not consider that Proposal #1 was
appropriate for negotiation. The letter also declared that management
does not allege that the duty to bargain does not extend to this matter;
that the letter should not be so construed; and that Respondent will
not state in writing that this proposal is non-negotiable.
13. The parties met on October 16, 1981 at which time Union agent
Armet presented, in writing, three additional proposals. /3/ Proposal
#8C was as follows:
"the restrooms will contain a lounge area with at least a sofa
and chair for use by members of the bargaining unit."
Respondent's representative Sunshine declared there was no lounge area
in Mineola and there would be none in Hempstead; that the proposal
exceeded the scope of impact bargaining. Record facts show that one of
the restrooms in Mineola had a table and chairs, and that it could have
been used as a lounge.
The Union also submitted to management Proposal #9 which was as
follows:
"the employer will provide the subject premises with two water
coolers for the exclusive use of members of the bargaining unit."
At the said meeting on October 16, 1981, management stated that there
was no change in regard to this item. Mineola had one water cooler and
there would be one in Hempstead. /4/ Sunshine declared it was not
negotiable.
The third proposal submitted by the Union on October 16, 1981 a
policy concerning smoking in facilities. Proposal #10 provided:
"Chapter 1-60, 'Policy on Smoking in HEW Occupied Buildings and
Facilities,' dated January 18, 1978 and part of the General
Administration Manual, and SSA Administrative Directives System
Guide, SSA, g: 110-5, dated September 15, 1978, entitled 'Policy
on Smoking in SSA Occupied Buildings and Facilities,' are
incorporated into this agreement, in toto, relative to smoking in
the same premises."
In respect to this item, Respondent insisted the language was
non-negotiable since the agency was bound by no-smoking regulations at
each location. Therefore, it was declared by Sunshine that no adverse
impact existed. Record facts show there was not any no-smoking areas in
the Mineola office; that in the summer of 1982 they did set aside one
such small area to accommodate an asthmatic employee. Further, the
Union wanted the no-smoking regulation to be grievable as part of an
agreement regarding impact and implementation.
14. Under date of October 22, 1981 Respondent wrote Armet that, with
respect to Proposals 8C, 9 and 10, they exceeded the scope of impact and
implementation bargaining and were not deemed appropriate for
negotiation; that Respondent made no allegation there was no duty to
bargain therein, and would not state the proposals were non-negotiable.
/5/
15. The parties met again on October 23, 1981 at which time the
Union submitted in writing two additional proposals. Its Proposal #15
provided as follows:
"All windows will be equipped with either blinds, shades, or
drapes to control light."
Agency representative Sunshine stated at the meeting that he was advised
the windows at Hempstead had drapes. Since this was true, management
declared, there was no adverse impact on unit employees. Sunshine
insisted that since there was no impact the proposal went beyond the
scope of impact bargaining. However, he refused to label the matter as
non-negotiable.
The Union's Proposal #16, submitted on October 23, 1981 to
management, was as follows:
"All office equipment that makes excessive noise (copiers, word
processing equipment, etc.) will be isolated so as not to disturb
employees."
Record facts show that, although a floor plan was provided the Union of
the new office, the location of all equipment at Hempstead is not shown
therein. While Union representative did not show where machines were
placed in the new location, he testified "people had complained that
there was a noise."
Respondent sent identical letters to Armet dated November 2, 1981
with respect to Proposals #15 and 16. In said letters, management
stated that the proposal exceeded the scope of impact and implementation
bargaining and therefore deemed inappropriate for negotiation; that
Respondent did not consider the proposal non-negotiable; and that the
letter should not be construed as an allegation that the duty to bargain
does not extend to the proposal.
16. At a meeting between the parties on November 2, 1981 the Union
submitted in writing four more proposals. /6/ The Union Proposal #12
stated the following:
"A. Space sufficient to accommodate a day care facility for
children of bargaining unit employees will also be provided.
B. Such day care facility will be operated by a committee of
users appointed by the Union and any costs, aside from the space
and utilities, will be borne by the user employees."
In respect to this proposal, Armet told management that it would take
some employees longer to get to work at the new location in Hempstead.
Thus, he stated, it might be necessary to make other arrangements for
the care of small children. Armet mentioned that Hempstead is on a
different branch of the commuter railroad than Mineola, and therefore
some employees would have difficulty in getting to work at the new site.
Although the Union official suggested a joint survey, since management
doubted the employees were affected in that respect, no response was
made to the suggestion.
The Union, in Proposal #13, suggested as follows:
"Each union steward will be provided with a locking file
cabinet for storage of confidential labor-management materials and
records."
Record facts disclose that, as to this proposal, the agency took the
position that there was no such cabinet for the stewards in Mineola, and
therefore it was outside the scope of bargaining. The Union insisted
there was a substantial adverse impact that required locking file
cabinets based on greater crime in Hempstead than Mineola.
Proposal #17 submitted in writing by the Union on November 2 stated
the following:
"A. The employer agrees to reimburse the employees for any
additional expense they incur traveling to the new location
according to the following schedule:
First 120 work days - 100 percent
Second 120 work days - 75 percent
Third 120 work days - 50 percent
(b) All expenses shall be reimbursed at the maximum GSA
allowable rate."
Management refused to discuss this proposal, contending it was being
addressed at the national level. Thus, Respondent deemed this item to
be beyond the scope of bargaining at the local level.
In its Proposal #22 the Union suggested the following:
"The employer will provide a copy of this agreement to each
member of the bargaining unit."
Armet testified the Union felt the employees should "know what issues
are going to be addressed to them"; that they should be award of the
kind of agreement their representative negotiated with management.
Apart from the disputing any impact, the agency contends this matter was
outside the scope of bargaining. /7/
17. In respect to the information sought by the Union, the record
indicates that Armet advised Respondent the Union wanted the lease to
determine what services were mandated by the lease at Mineola and
Hempstead. Certain items required in Mineola might not be required at
Hempstead, and thus the employees might be affected adversely.
As to correspondence among the agency, the landlord and GSA, the
Union wanted to learn as to problems which might exist at Hempstead.
Armet testified that since they were moving from a first floor on a
street level to a fourth floor occupancy, he was concerned about safety.
Thus, he wanted to know what the GSA inspectors said about the
premises. The Union official transmitted these concerns to management.
18. By letter dated November 12, 1981 Respondent wrote Armet that
the information sought by the Union was internal management
correspondence. Further, it regarded the correspondence and materials
as irrelevant and unnecessary to any discussion regarding potential
adverse impact caused by the relocation of the Mineola office.
Respondent, while refusing to furnish the data requested, stated it
would reconsider the decision if the Union showed the relevance thereof.
19. Respondent's operations specialist Argesti testified, and I
find, management attempted to obtain a copy of the lease of the
Hempstead premises through the Facilities Engineering and Construction
Agency. A letter was written on July 28, 1981 to the latter agency by
Respondent's management officer David Kolachny requesting same. The
said agency, under date of July 31, 1981 wrote GSA and formally
requested the lease desired by the Union. The lease was never provided
as requested.
Conclusions
The essential issues /8/ presented for determination herein are as
follows: (1) whether Respondent failed to bargain in good faith with
the Union concerning the impact and implementation of the movement of
its office and employees from Mineola, New York to Hempstead, New York;
(2) whether Respondent's refusal or failure to furnish information
requested by the Union was violative of the Statute.
(1) The employer herein concedes that it is obliged to bargain
regarding the impact and implementation of its decision to relocate the
Office of Hearings and Appeals. In truth, its letters to the Union
official, James Armet, as well as the record itself, reflects that
management continually asserted it did not take the position that the
proposals submitted by the Union were non-negotiable. However, having
affirmed its duty to negotiate as to the effect of its move, Respondent
insists that no adverse impact has been shown by the Union. In
particular, the agency argues that the proposals by the bargaining
representative do not establish any adverse impact in each instance.
Further, Respondent maintains that either no change is evident Panel, 2
am persuaded that all of them-- except Proposal 17A & B-- the impact of
any proposal upon the employees is not substantial as required by the
Authority. See Office of Program Operation, Field Operations, Social
Security Administration, et al., 5 FLRA No. 45 (1981).
In contradistinction to Respondent's position regarding the
consideration of a possible impact resulting from the proposals by the
Union, the General Counsel contends that it is the change in location
which gives rise to any possible obligation to bargain. If the decision
to relocate involves foreseeable impact and the specific proposals
relate to working conditions encompassed by the move, an employer is
required to bargain regarding this impact and implementation. As argued
by General Counsel, the employer herein was not entitled to reject the
10 proposals submitted by the Union on the alleged ground that they
exceeded the scope of impact and implementation bargaining merely
because it insists no actual adverse impact was shown to exist.
It is clear, both from a reading of the "management rights"
provisions of the Statute, Section 7106 thereof, and the decisional law,
that certain prerogatives are reserved to an employer in respect to
personnel as well as the technology, methods and means of performing
work. Matters embraced within such statutory authority given to
management will be deemed non-negotiable. Nevertheless, though an
agency may not be called upon to negotiate the decision in such regard,
the Statute specifies that the parties may bargain as to the procedures
to be observed in effecting the particular decision, as well as
appropriate arrangements for employees adversely affected thereby.
Thus, specific proposals by the Union-- though not negotiable because
they conflicted with a manual regulation, for which no compelling need
existed-- still were deemed bargainable regarding impact and
implementation. /9/ The Adjutant General's Office, Puerto Rico Air
National Guard, 3 FLRA No. 55 (1980).
With respect to the action taken by an agency which gives rise to a
duty to negotiate the impact and implementation thereof, I agree with
the General Counsel's position that, in the case at bar, it is the
change in location that underlies a possible obligation to bargain.
Contrary to Respondent's contention, when an employer relocates or moves
its office and employees one must consider whether such change itself--
rather than the extent of a change in a particular condition-- will
result in an adverse impact upon employees. Thus, as an example, an
agency might have, in a new office area, the same number of windows as
the old location. Nevertheless, the new location might be surrounded by
adjacent buildings which cut off the light in the office. An adverse
impact upon employees stems from the move itself. There may be
inadequate lighting, and yet the employer may argue there is no change
since the same number of windows exist at both locations. Thus it is
that I do not accept Respondent's argument that no adverse impact
resulted as to some of the Union's proposals because the same conditions
(i.e. water coolers) prevailed at Hempstead as at Mineola.
However, not every proposal of a Union, even though inspired by a
relocation would require an employee to bargain thereon. I would agree
with Respondent that the Union herein cannot take the occasion of the
location to negotiate regarding any proposal the bargaining agent may
care to submit. The matters which a Union desires to negotiate should
relate to working conditions of employees. This is self-evident from a
reading of the definition of "collective bargaining" as set forth in
Section 7103(a)(12) of the Statute. In defining that term the Statute
bespeaks of an obligation to bargain with respect to conditions of
employment affecting employees. Accordingly, any change effected by the
agency, before it imposes a duty to bargain upon the latter with respect
to matters presented by the Union, must be viewed as to whether, a
priori, these matters involve employment conditions.
Moreover, the change resulting from an agency's action-- albeit a
reassignment, new program, or relocation-- must reflect a substantial
impact upon the employees. It will not do to obligate an agency to
negotiate regarding changes which are de minimus or insignificant,
having no direct bearing upon employees. The Authority has adopted this
view and hastened to conclude that the adverse impact of a change must
be substantial. Office of Program Operations, Field Operations, Social
Security Administration, et al., supra; Social Security Administration,
Bureau of Hearings and Appeals, 2 FLRA No. 27 (1979), (involving a
change in location of flexitime sign-in/sign-out sheets).
A dispute, however, may arise in certain instances as to whether an
adverse impact will result from a change effected by management. Where,
as here, the change has not occurred at the time the bargaining agent
requested negotiation regarding certain matters, it may be argued by an
employer that no impact either existed or could result from agency
action. A very thorough analysis of a rational approach to be followed
in such an instance was enunciated by Judge Dowd in his decision in U.S.
Government Printing and Joint Council of Union, GPO, Case No. 3-CA-549
(decided April 9, 1981). It was concluded therein that a useful test to
employ-- where no actual impact has yet occured-- is whether there
exists a reasonable likelihood of a substantial impact wrought by
management's action. Thus, something more than a mere possibility of
some impact must be evident from the change. I would adhere to this
rationale and adopt the view that adverse impact must be a likely
resultant from the action taken by the employer.
Turning to the case at bar, I am satisfied that the relocation from
Mineola to Hempstead of an office staff is a change likely to result in
a substantial impact upon Respondent's employees. The movement of an
office from one town to another, with attendant differences in building
structures and size, location, area, neighborhood facilities, transit
routes, and security-- to name a few considerations-- must necessarily
constitute a change affecting the employees of the agency herein. The
foregoing factors, moreover, give rise to an obvious conclusion that it
is a reasonable likelihood such relocation will produce a substantial
and adverse impact upon Respondent's workers. Thus, the move from
Mineola to Hempstead, in my opinion, imposed a duty upon the employer
herein to negotiate with respect to the procedures to be observed in
effecting such relocation, as well as appropriate arrangements which are
likely to affect its employees. See United States Department of
Treasury, Internal Revenue Service, Dallas District and National
Treasury Employees Union, National Treasury Employees Union, Chapter 46,
Case No. 6-CA-1056 (decided June 4, 1982).
With respect to the proposals submitted by the Union to Respondent,
exclusive of those which were sent to the Federal Service Impasses
Panel, I am persuaded that all of them - except Proposal 17A & B - may
be properly deemed conditions of employment. Said proposals are
incidental to, and relate to, the relocation by Respondent from Mineola
and Hempstead. The various items refer specifically to personnel
matters and practices involving the unit employees. As such, they may
be indicative of the impact resulting from the move to the new area.
In sum, I am satisfied that, as conditions of employment, the
Respondent may not establish, as a valid defense to their consideration,
that such matters were outside the scope of impact bargaining. See
American Federation of State, County and Municipal Employees, AFL-CIO,
Local 2477, et al., and Library of Congress, 7 FLRA No. 89 (1982)
(involving a relocation of employees to a new building). The Authority
declared that inter alia, the following proposals by the bargaining
agent, as a result of the relocation, related to matters affecting
working conditions: (a) file cabinet space, (b) office size, (c)
partitions to insure no noise, (d) conformance to fire codes and
regulations, (e) prohibiting work in areas violating safety codes. /10/
See also American Federation of Government Employees, AFL-CIO and Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA
No. 77 (1980) (involving day care facilities); National Treasury
Employees Union and NTEU Chapter 80 and Department of the Treasury,
Internal Revenue Service, Central Region, 8 FLRA No. 38 (1982)
(involving installation of drapes, noise abatement items).
However, in regard to Proposal 17A & B, I am constrained to conclude
that these do not fall within the framework of the term "condition of
employment" as defined in Section 7103(a)(3) of the Statute. The latter
section excepts from such term policies, practices and matters "to the
extent such matters are specifically provided for by Federal Statute."
Note is taken that under 5 U.S.C. 5704 (1980) Federal employees are
entitled to reimbursement for mileage only if they are "engaged in
official business for the Government." Thus, the proposals herein, which
seek reimbursement for additional expenses incurred while traveling to
the new location, are, by Statute, not deemed employment conditions.
Since reimbursement to employees for mileage is covered by 5 U.S.C.
5704, the Union herein may not insist that such expenses are within the
scope of impact bargaining. The Authority has, moreover, determined
that a proposal akin to Proposal 17A & B, is outside the duty to bargain
and governed by Federal Statute. It concluded in American Federation of
Government Employees, AFL-CIO, Council 236 and General Services
Administration, 9 FLRA No. 108 (1982) that commuting expenses are not
deemed as being incurred in official travel but must be borne by the
employees.
Accordingly, I conclude that the move by Respondent from Mineola, New
York to Hempstead, New York of its staff and office was a significant
change, which resulted in a reasonable likelihood of substantial and
adverse impact upon its employees. Further, that it was required to
bargain regarding the procedures to be observed in effecting the
relocation, as well as the appropriate arrangements for employees
adversely affected thereby. Moreover, Union Proposals #1, 8C, 9, 10,
12, 13, 15, 16, and 22-- as herein before set forth-- were conditions of
employment related to the change and within the scope of impact
bargaining. /11/ Since the Respondent failed and refused to negotiate
thereon, I also conclude it violated Section 7116(a)(1) and (5) of the
Statute. /12/
(2) The General Counsel also contends that Respondent failed to
comply with Section 7114(b)(4) of the Statute by not furnishing data and
materials requested by the Union. In addition to requesting a copy of
the floor plan at the new location, which was furnished by Respondent,
the Union sought the following: (a) correspondence, including the lease
at the new premises, between the Office of Hearings and Appeals
management, General Services Administration, and the landlord at the new
premises relative to Respondent's occupancy of the new space; (b)
memorandum regarding additional expense by Office of Hearings and
Appeals for office fixtures and amenities.
An agency is obliged, under Section 7114(b)(4) to supply the
bargaining representative with data, not prohibited by law, which: (a)
is normally maintained by it in the regular course of business; (b) is
reasonably available or necessary for full and proper discussion,
understanding and negotiation of subject within the scope of collective
bargaining. /13/ With respect to the lease requested by the Union
herein, record facts show the Respondent did not have same but sought to
obtain it from GSA. However, the latter agency never responded and
since Respondent did not maintain the lease, it was unable to furnish it
to the Union. In this posture, I cannot conclude that the agency herein
violated Section 7114(b) in respect to its failure to supply the Union
with a copy thereof. The item was not maintained by it in the regular
course of business, and it has not been demonstrated that Respondent had
the lease in its possession.
In regard to the correspondence sought by the Union, I am persuaded
that the request, as framed, was too broad and should have been framed
more specifically in accord with desired information. That this could
have been accomplished is apparent from the fact that the Union sought
this data because it was concerned with the safety at Hempstead. Record
facts reflect the bargaining agent was interested in learning what
problems existed at this location and to ascertain the comments of the
GSA inspectors regarding the premises. A request for information which
is general in nature puts management in the position of having to
speculate as to what data should be furnished. Director of
Administration Headquarters, U.S. Air Force, 6 FLRA No. 24 (1981).
Thus, much of the correspondence regarding the occupancy of the new
space could well be irrelevant and unnecessary to a proper discussion of
safety at the Hempstead location. Respondent should not have been
obliged to determine the correspondence that was referable to matters
concerning which the Union sought to bargain. Accordingly, I do not
conclude Respondent breached its duty by failing and refusing to comply
with this portion of the Union's request.
With respect to the demand for data referring to expenses incurred by
Respondent for office fixtures and amenities at Hempstead, the Union
avers it desires such information in order to draft proposals to correct
deficiencies. A question is posed as to the possible relevance and
materialability of this particular information. The Courts have held,
in the private sector, that certain types of information-- as in wage
data cases-- are at the core of employer-employee relationships. Thus
such data is presumptively relevant. J.I. Case v. NLRB, 253 F.2d 149
(7th Cir. 1968). In other instances the burden is on the Union to
establish the relevance of the material sought to bargainable issues -
San Diego Newspaper Guild v. NLRB, 548 F.2d 863 (9th Cir. 1977). While
the Union herein argues it seeks this data to draft proposals to correct
deficiencies, this request is directed to expenses incurred in the
office itself. As such, I view this information as not presumptively
relevant to bargaining concerning employment conditions at Hempstead.
The expenses by management for office fixtures and amenities are not
shown herein to be directly related to employment conditions at
Hempstead. Contrariwise, Union officials aver they wanted to learn
possible deficiencies so as to draft proposals for bargaining. It does
not appear to the undersigned that office expenditures per se will
demonstrate needed corrections at the new location, and I conclude that
the relevance of the information sought does not bear directly on
bargainable issues.
Having found that Respondent did not fail or refuse to cooperate in
impasse procedures and impasse decisions as alleged, and that Respondent
did not violate Section 7116(a)(1) and (6) of the Statute, it is
recommended that paragraphs 8 and 11 of the Consolidated Complaint be
dismissed.
Having found that Respondent did not fail or refuse to comply with
Section 7114(b)(4) of the Statute by refusing to furnish the Union with
relevant and necessary information for proper discussion and negotiation
of matters within the scope of collective bargaining, and that
Respondent did not thereby violate Section 7116(a)(1) and (8) of the
Statute, it is recommended that paragraphs 9 and 12 of the Consolidated
Complaint be dismissed.
Having found that Respondent violated Section 7116(a)(1) and (5) of
the Statute by failing and refusing to bargain with the Union concerning
the impact and implementation of its relocation from Mineola, New York
to Hempstead, New York, it is recommended that the Authority issue the
following Order:
ORDER
Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Social Security Administration, Office of Hearings and Appeals,
Region II, New York, New York, shall:
1. Cease and desist from:
(a) Relocating or moving its offices and employees, without
first notifying the American Federation of Government Employees,
Local 1760, the exclusive representative of its employees, and
affording it the opportunity to negotiate, to the extent consonant
with law and regulations, concerning the procedures to be observed
in such relocation or move and the arrangements for employees
adversely affected by such action.
(b) Refusing to negotiate in good faith with the American
Federation of Government Employees, Local 1760, the exclusive
representative of its employees, to the extent consonant with law
and regulations, as to the procedures to be observed in any
further implementation of its relocation from Mineola, New York to
Hempstead, New York, and the arrangements for employees adversely
affected by the relocation, including, but not limited to,
Proposals #1, 8C, 9, 10, 12, 13, 15, 16 and 22, submitted to it by
the exclusive representative.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Notify the American Federation of Government Employees,
Local 1760, the exclusive representative of our employees, of any
intention to relocate or move our offices and employees, and
afford it the opportunity to negotiate, to the extent consonant
with law and regulations concerning the procedures to be observed
in such relocation or move and arrangements for employees
adversely affected by such action.
(b) Upon request, negotiate in good faith with the American
Federation of Government Employees, Local 1760, the exclusive
representative of its employees, to the extent consonant with law
and regulations, as to the procedures to be observed in any
further implementation its relocation from Mineola, New York to
Hempstead, New York, and the arrangements for employees adversely
affected by the relocation, including, but not limited to,
Proposals #1, 8C, 9, 10, 12, 13, 15, 16, and 22, submitted to it
by the exclusive representative.
(c) Post at its facilities in Hempstead, New York, copies of
the attached notice marked "Appendix," on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such
forms, they shall be signed by the Regional Manager of the
Hempstead, New York office, and they shall be posted for 60
consecutive days thereafter in conspicuous places including all
places where notices to employees are customarily posted. The
Regional Manager shall take reasonable steps to insure that said
notices are not altered, defaced, or covered by any other
materials.
(d) Notify the Regional Director, Region I, 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.
WILLIAM NAIMARK
Administrative Law Judge
Dated: May 23, 1983
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT relocate or move our offices and employees, without first
notifying the American Federation of Government Employees, Local 1760,
the exclusive representative of our employees, and affording it the
opportunity to negotiate, to the extent consonant with law and
regulations, concerning the procedures to be observed in such relocation
or move and the arrangements for employees adversely affected by such
action. WE WILL NOT refuse to negotiate with the American Federation of
Government Employees, Local 1760, the exclusive representative of our
employees to the extent consonant with law and regulations as to the
procedures to be observed in any further implementation of the
relocation from Mineola, New York to Hempstead, New York, and the
arrangements for employees adversely affected by the relocation,
including but not limited to, Proposals #1, 8C, 9, 10, 12, 13, 15, 16
and 22, submitted to it by the exclusive representative. WE WILL NOT in
any like or related manner interfere with, restrain, or coerce our
employees in the exercise of rights assured by the Federal Service
Labor-Management Relations Statute. WE WILL notify the American
Federation of Government Employees, Local 1760, the exclusive
representative of our employees, of any intention to relocate or move
our offices and employees, and afford it the opportunity to negotiate,
to the extent consonant with law and regulations concerning the
procedures to be observed in such relocation or move and arrangements
for employees adversely affected by such action. WE WILL, upon request,
negotiate in good faith with the American Federation of Government
Employees, Local 1760, the exclusive representative of our employees, to
the extent consonant with law and regulations, as to the procedures to
be observed in any further implementation of the relocation from
Mineola, New York to Hempstead, New York, and the arrangements for
employees adversely affected by the relocation, including, but not
limited to, Proposals #1, 8C, 9, 10, 12, 13, 15, 16 and 22, submitted to
it by the exclusive representative.
(Agency or Activity)
DATED: . . . BY: (Signature) This Notice must remain posted for 60
consecutive days from the date of posting and must not be altered,
defaced or covered by any other material. If employees have any
questions concerning this Notice, or compliance with any of its
provisions, they may communicate directly with the Regional Director,
Federal Labor Relations Authority, Region I, whose address is: 441
Stuart Street, 9th Floor, Boston, MA 02116, and whose telephone number
is: (617) 223-0920.
/1A/ Section 7114(b)(4)(B) provides:
Sec. 7114. Representation rights and duties
. . . .
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall
include the obligation--
. . . .
(4) in the case of an agency, to furnish to the exclusive
representative involved, or its authorized representative, upon
request and, to the extent not prohibited by law, data--
. . . .
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining(.)
--------------- FOOTNOTES$ ---------------
/1/ Both Armet and Collender were duly designated as proper agents to
deal with management in the New York Region regarding the relocation of
the Respondent's office. No issue is raised as to their authority.
/2/ Note is taken by the undersigned that, according to the Rand
McNally Road Atlas, the distance between Mineola and Hempstead is about
four or five miles.
/3/ The record reflects that of the 22 proposals submitted by the
Union to Respondent 12 were referred to the Federal Service Impasses
Panel for resolution. All remaining 10 proposals, which are set forth
herein, were the subject of some discussion between the parties.
Reference is made to each such proposal as submitted and discussed, as
well as the position of Respondent with respect thereto.
/4/ Respondent took the same position on September 11, 1981 at a
meeting between the parties. At that time the Union stated that an
additional cooler was needed for the handicapped employees.
/5/ As to all of the proposals involved herein, Respondent would not
state in writing that they were not negotiable, nor that there was no
duty to bargain as to same.
/6/ The record reflects that with regard to Union Proposals #12, 13,
17 and 22, discussions between the parties occurred over a period of
time between September 11 and November 2, 1981.
/7/ In respect to Proposals #12, 13, and 22, Respondent replied in
writing on November 10 that (a) the proposal exceeded the scope of
impact and implementation bargaining, (b) the subject matter is
encompassed by negotiation at the national level. As to Proposal #17,
Respondent wrote that it was encompassed by negotiation at the national
level. In regard to all four proposals, Respondent declared it did not
allege they were non-negotiable, nor would it state that the duty to
bargain does not extend thereto.
/8/ In its brief, Respondent states, as a matter of law, that the
obligation to negotiate exists at the level of recognition and not at
the local level. To the extent that Respondent argues this principle
should exculpate it from responsibility for its action, said argument is
rejected. Where the lower-level management initiates conduct affecting
employment conditions, it violates the Statute notwithstanding that
exclusive recognition and the bargaining agreement is at the higher
level. Social Security Administration, et al., 5 FLRA No. 63 (1981).
/9/ Although alluding to the same concepts, the terms "impact and
implementation" are employed as referable to "procedures" and
"appropriate arrangements" set forth in Section 7106(b)(2) and (3) of
the Statute.
/10/ As to matters involving fire or safety codes, the Authority
qualified its determination that such items were within the duty to
bargain to the extent the agency has discretion with respect thereto.
/11/ As to several proposals, Respondent insists that it was not
obliged to bargain - and they were not within the scope - because
negotiations thereon were being conducted at the national level. I find
such defense to be untenable. No showing was made, nor does it appear,
that final agreement as to such items was reached so as to be binding at
the local level. See and compare Social Security Administration et al.,
10 FLRA No. 4 (1982).
/12/ In its brief General Counsel contends the Union was deprived of
its right to utilize mediation, as part of impasse procedures, because
Respondent relocated while being asserted by Federal Mediators regarding
discussion of the proposals. Hence, it argues, Respondent also violated
Section 7116(a)(6) of the Statute. I disagree. Cases holding
violations of said section involve refusals to honor and abide by
Decisions and Orders of the Federal Service Impasses Panel, or refusing
to cooperate in impasse decisions or procedures. No such proof appears
herein. See Division of Military and Naval Affairs, State of New York,
Albany, New York, 8 FLRA No. 33 (1982).
/13/ Data constituting guidance, advice, counsel, or training
provided for management official or supervisors is excepted.