[ v38 p899 ]
38:0899(76)CA
The decision of the Authority follows:
38 FLRA No. 76
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
U.S. DEPARTMENT OF LABOR
WASHINGTON, D.C.
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
NATIONAL COUNCIL OF FIELD LABOR LOCALS
LOCAL 1748
(Charging Party)
7-CA-90315
DECISION AND ORDER
December 13, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel. The Respondent filed an opposition to the General Counsel's exceptions and cross-exceptions to the Judge's Decision.
The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by discontinuing the practice of providing bottled water and water coolers to unit employees without completing bargaining with the Union over the decision and its impact and implementation. The Judge found that no violation of the Statute had occurred and recommended that the complaint be dismissed.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the procedural rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings.
We find, however, contrary to the Judge, that the Respondent violated the Statute, as alleged in the complaint.
II. Background
The Respondent's Kansas City Regional Office is located in the Federal Building at 911 Walnut Street, Kansas City, Missouri. The Respondent rents 11 floors in the building from the General Services Administration (GSA). The rent includes a charge for water utilities.
In June and July 1987, a problem developed with the drinking water in the Respondent's office building. The water was discolored and contained sediments. The Regional Administrator of the Respondent's Office of the Assistant Secretary for Administration and Management (OASAM), contacted the building manager, GSA, and the city water department about the problem. Around the same time, the President and Vice President of the Union contacted the Regional Administrator and expressed their concern about the deterioration of the drinking water in the building. The Kansas City Water Department ran tests on the water which indicated that the water contained higher levels of turbidity, discoloration and iron than was desirable. By memorandum dated July 22, 1987, the Respondent informed OASAM employees about the problem with the drinking water on the first and second floors and suggested that they use other sources of water until the problem was solved.
On August 13, 1987, the Union President filed a formal health and safety complaint with the Regional Administrator. In the letter accompanying the complaint, the Union President requested that the Respondent provide bottled water for drinking for all of the Respondent's offices in the building. Shortly thereafter, the Respondent began to furnish bottled water on the first and fourth floors of the building.
In September 1987, the water problem spread to the nine higher floors occupied by the Respondent. At the September 1987, Quarterly Labor-Management Relations (LMR) Committee Meeting, the Union "requested information concerning why the tainted water problem at 911 Walnut [Street] had not been corrected after almost four months." Respondent's Exh. E, item 13. The Respondent agreed to provide the Union with all written correspondence between OASAM and the building manager, the Kansas City Water Department and GSA pertaining to the water problem. The Respondent also advised the Union that bottled drinking water was being provided on the floors where the problem existed.
By memorandum dated October 23, 1987, the Respondent informed the Union that a sealant was sprayed on the hot water tanks which resulted in the water having a foul odor and taste. The memorandum further stated that the Respondent was advising employees not to use the water until the water was determined to be safe to drink. In that memorandum, the Respondent also informed the Union that "[b]ottled water [was] being provided for all DOL employees in the interim." G.C.'s Exh. No. 7.
At the February 1988, Quarterly LMR Committee Meeting, the Union requested information regarding the water supply at the Federal building. The Respondent advised the Union that "bottled drinking water [would] be provided indefinitely until more tests on the tap water [could] be done." Respondent's Exh. O, item 7. The Respondent also advised the Union that tests would be done on the bottled drinking water as a result of recent newspaper articles regarding lead in certain bottled water coolers. The Respondent further told the Union that it would be given "at least 30 days['] notice prior to the discontinuation of the bottled water." Id.
At the May 2-3 Quarterly LMR Committee Meeting, the Union requested an update concerning the water problem in the Federal Building. The Respondent told the Union that additional testing was being done by an independent contractor. The Respondent advised the Union that as soon as the plumbing problems were corrected, with little likelihood of recurrence, the bottled water would be discontinued. The Respondent reaffirmed that it would give the Union 30 days' notice before it discontinued the bottled water. Respondent's Exh. Q, item 12.
In September 1988, two separate tests were run on the tap water at the Federal Building. Both test results found the water potable and within the EPA drinking standards.
At the October 11, 1988, Quarterly LMR Committee Meeting, the Respondent advised the Union that recent laboratory tests indicated that the water in the Federal Building was safe to drink. During the October 11 meeting, the Respondent gave the Union 30 days' notice of its intention to discontinue providing bottled water to DOL employees at the Federal Building. By Memorandum dated October 14, 1988, to the Union President, the Respondent confirmed that 30 days' notice of its intention to discontinue furnishing bottled water was given to the Union at the October 11 meeting.
On October 18, 1988, the Union sent a letter requesting bargaining over the substance, impact, and the manner of implementation of the discontinuance of the bottled water. By memorandum dated November 2, the Respondent agreed to meet with the Union to discuss and resolve its concerns regarding the discontinuance of the bottled water.
A meeting was held on November 29, 1988, at which the Union presented five proposals. The proposals provided for the Respondent to: (1) continue to pay for 100 percent of the cost of the bottled water and dispensers until March 1, 1989; (2) consult with employees on each floor on their willingness to pay part of the cost of supplying bottled water; (3) discontinue providing bottled water for any floor on which the employees are not willing to bear part of the cost; (4) pay for the full cost of the dispensers and 50 percent of the expense of the bottled water on the floors in which the employees were willing to bear some cost; and (5) monitor the quality of the water supply on a continuous basis on any floor where bottled water is discontinued and take appropriate corrective action if the quality of the water is below standards. The Respondent asserted that it was not obligated to negotiate over the decision to discontinue providing bottled water because the continuation of the service would be illegal. The Respondent maintained that, under Comptroller General Decisions, it would be illegal for the Respondent to continue bearing any expense for bottled water when potable city water is available.
The parties again met on December 6, 1988. The Respondent reiterated its position that the decision to discontinue furnishing bottled water was nonnegotiable. The Respondent offered, as a counter-proposal, to continue providing bottled water until December 31, 1988, and to take prompt corrective action should problems reoccur. The Union rejected the counter-proposal. All of the Union's proposals required the Respondent to share the cost of the bottled water indefinitely. The Union suggested contacting a mediator to assist in resolving the matter. The Respondent agreed to meet with a mediator.
The Union contacted a mediator and a meeting was scheduled for December 9, 1988. The Regional Administrator informed the Union that he was unavailable for a meeting on December 9. He offered to meet with the Union and the mediator on December 12, 1988. The Union indicated that it would be unavailable for the remainder of December and that the meeting would have to be scheduled after the first of the year. According to the Respondent, it advised the Union that although it would meet with a mediator after the first of the year, the bottled water would be discontinued on December 31. The Union disputes the assertions that the Respondent told the Union that it was going to terminate the bottled water on December 31, 1988. According to the Union, the meeting ended with the understanding that the parties were at impasse and they would schedule a meeting with a mediator as soon as possible after the first of the year.
The Respondent removed the water coolers from its offices on December 31, 1988.
III. Administrative Law Judge's Decision
The Judge found that the "'availability of bottled water' qualifies as a 'condition of employment' and that bargaining thereon, even when water is available at the premises from other sources, is not precluded by the Comptroller General decisions[,] cited [by the Respondent]."(1) Judge's Decision at 9. In reaching his conclusions, the Judge relied on and adopted the analyses in two prior Administrative Law Judge decisions concerning bottled water, where the same conclusions were reached.(2)
However, in this case, the Judge found that the "'availability of bottled water' did not become a condition of employment of the unit employees by virtue of past practice . . . ." Id. at 10. In the Judge's view, the condition of employment was of "a limited nature" as opposed to a condition of employment "which existed and/or was applied to unit employees for an extended period of time without any announced time limit." Id. The Judge reasoned that when the Respondent installed the bottled water, the Respondent "made it clear that the availability of such bottled water was only until the drinking water currently available to the employee was certified as potable." Id. The Judge stated that he was unable to find "any case where an agency was required to bargain over the removal of a condition of employment which came into existence solely because of an emergency[.]" Id. The Judge also found that "there was no showing that the Respondent provided bottled water for any significant period of time after the city water was certified as potable." Id.
The Judge concluded that the "'availability of bottled water' did not become a condition of employment of unit employees by virtue of past practice[,] and therefore [the] Respondent was under no obligation to bargain with the Union prior to discontinuing [the bottled water]." Id. Accordingly, the Judge recommended that the unfair labor practice complaint be dismissed.
IV. Positions of the Parties
A. General Counsel's Exceptions
The General Counsel excepts to the Judge's finding that the bottled water did not become a condition of employment by virtue of past practice. The General Counsel contends that the Judge's finding is inconsistent with Authority precedent.
First, the General Counsel argues that the Judge used "an incorrect analysis" in arriving at the conclusion "that the availability of bottle water did not become a condition of employment by virtue of 'past practice[.]'" Exceptions at 5 (emphasis in original). The General Counsel points out that in Department of the Navy, Naval Weapons Station Concord, Concord, California, 33 FLRA 770, 771 (1988) (Naval Weapons Station Concord), the Authority held that:
a matter does not become a condition of employment through past practice or the parties agreement. Rather, an independent analysis of whether a matter is a condition of employment at the time a dispute arises is necessary.
Exceptions at 4. The General Counsel argues that once the Judge found that the bottled water was a condition of employment, he should have next determined whether the Respondent's provision of bottled water had become "established" for unit employees through "past practice[.]" Id. at 6 (emphasis in original).
Second, the General Counsel contends that the Judge failed to apply the correct criteria for determining whether a condition of employment had been established by past practice. Citing Department of the Treasury, Internal Revenue Service, (Washington, D.C.); and Internal Revenue Service, Hartford District (Hartford, Connecticut), 27 FLRA 322 (1987) (Internal Revenue Service); and Department of Defense, Army and Air Force Exchange Service, Fort Eustis Exchange, Fort Eustis, Virginia, 20 FLRA 241 (1985) (Army and Air Force Exchange Service), the General Counsel asserts that:
in order to constitute a past practice, that is, a condition of employment which cannot be changed without bargaining, that practice must be consistently exercised for an extended period of time and followed by both parties, or followed by one party and not challenged by the other over a "substantially" long duration.
Id. at 6.
The General Counsel argues that the Judge developed a "a whole new theory of law" to support his conclusion that the provision of bottled water did not become a condition of employment by virtue of past practice. Id. at 9 The General Counsel maintains that the Judge created a new type of condition of employment, where a matter becomes a "'limited condition of employment'" because management gives notice that practice will only be followed in the "interim[.]" Id. The General Counsel further notes that the Judge labeled the situation an "emergency" and implied that an agency has no obligation to bargain over the removal of a condition of employment which came into existence because of an emergency. Id. at 11.
The General Counsel argues that the Authority should reject the Judge's new theories and apply the existing criteria for determining whether a condition of employment has become established through past practice. The General Counsel contends that based on the existing criteria, the availability of bottled water was established through past practice because the Respondent provided bottled water for the unit employees for over a year.
Further, the General Counsel argues that the Judge erred by requiring that a condition of employment "must become established by 'past practice' before Respondent is obligated to bargain over its removal." Id. at 12. The General Counsel argues that the existence or lack of past practice is irrelevant to whether a matter is a condition of employment. The General Counsel contends that, if a matter qualifies as a condition of employment under the standard set forth in Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986) (Antilles), agency management "[may] not make changes without first completing bargaining" irrespective of the existence of past practice. Id. at 13. In this regard, the General Counsel asserts that the Authority's decisions in Internal Revenue Service, 29 FLRA 162 (1987); and Internal Revenue Service (District Office Unit), Department of the Treasury, 29 FLRA 268 (1987) "[allow] Unions to initiate mid-term bargaining" concerning matters which are not addressed in the agreement and were not clearly and unmistakably waived by the Union during negotiations of the agreement. Id. at 14. The General Counsel argues that because bottled water is a condition of employment (1) agency management is required to bargain over union initiated mid-term proposals concerning bottled water; and (2) if management furnishes bottled water for any period of time, management "would have to complete bargaining prior to removing that water." Id. at 14.
B. Respondent's Opposition and Cross-Exceptions
The Respondent contends that the Judge correctly concluded that the availability of bottled water had not become a condition of employment by virtue of past practice and that the Respondent did not have an obligation to bargain over the decision to discontinue the bottled water. The Respondent argues that the Judge's decision is consistent with the Authority's decision in Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 9 FLRA 48 (1982), where the Authority held that an agency did not violate section 7116(a)(1) and (5) of the Statute when it discontinued a practice because "the union was advised that the practice was temporary in nature and the union did not request to bargain at the time initial notification was given[.]" Opposition at 20.
The Respondent further contends that its practice of using Government funds to provide bottled water after potable water was available was illegal and, therefore, outside the duty to bargain. Relying on 31 U.S.C. § 628 and decisions of the Comptroller General, including 6 Comp. Gen. 619 (1927) and 5 Comp. Gen. 53 (1925), the Respondent contends that the purchase of bottled water did not meet the "necessary expense" test for spending appropriated funds under these decisions. According to the Respondent, Comptroller General decisions flowing from 5 Comp. Gen. 53 hold "that a necessity for bottled water only exists when there is no adequate supply of potable water in the building in which the employees work and that it is impermissible to expend funds on bottled water if there is a potable supply of tap water available." Opposition at 26-27.
The Respondent contends that because the results from two water tests showed that the water was potable, "it would have been illegal for the Department to continue expending funds for bottled water once tap water in the building was potable." Id. at 27. The Respondent contends, therefore, that "[it] had no duty to bargain over the substance of the decision to discontinue the bottled water." Id. at 28.
Additionally, the Respondent contends that assuming it had a duty to bargain over the impact and implementation of its decision, it bargained with the Union over impact and implementation of the removal of the bottled water at the February 1988 quarterly labor relations meeting and arrived at an agreement. According to the Respondent, "[t]he agreement provided that if management gave the union 30 days' notice of its intention to remove the bottled water, there would be no further negotiations on the matter . . . ." Id. at 30. Further, the Respondent contends that assuming that the Authority finds that there was no agreement between the Union and Respondent, it bargained with the Union to impasse over the impact and implementation of the decision to remove the bottled water and gave the Union adequate notice of its intent to discontinue the bottled water before it implemented the decision.
V. Analysis and Conclusions
A. The Dispute Concerns a Condition of Employment Which Had Become Established Through Past Practice
In deciding whether a matter involves a condition of employment of bargaining unit employees, the Authority considers two basic factors: (1) whether the matter pertains to bargaining unit employees, and (2) the nature and extent of the effect of the matter proposed to be bargained on working conditions of those employees. Antilles, 22 FLRA at 236-37. Consistent with Antilles and as discussed fully in DOL, we find that the "availability of potable water directly affects the working conditions of unit employees and is, therefore, a condition of employment." DOL, 37 FLRA at 34. We find also, for the reasons stated by the Judge, that bargaining on the matter is not barred by Federal law or Comptroller General decisions.
As the availability of potable water concerns a condition of employment, aspects of that matter, such as the procedures and practices relating to the provision of potable water, also concern conditions of employment. In this regard, we disagree with the Judge's conclusion that the "'availability of bottled water' did not become a condition of employment by virtue of past practice[.]" Judge's Decision at 10. We find instead that the availability of bottled water had become established for bargaining unit employees through past practice. We note the following:
First, conditions of employment may be established for bargaining unit employees either by practice or agreement. See Internal Revenue Service, 27 FLRA at 325. A matter which is not a condition of employment does not become a condition of employment either through practice or agreement, however. See Naval Weapons Station Concord, 33 FLRA at 771; Veterans Administration and Veterans Administration Medical Center, Lyons, New Jersey, 24 FLRA 64, 68 (1986). Therefore, we reject that aspect of the Judge's analysis which suggests that a matter can become a condition of employment through past practice or agreement.
Second, we disagree with the Judge's conclusion that the availability of bottled water was a condition of employment of "a limited nature" and was not, therefore, established by past practice. Authority precedent has established that in order for a condition of employment to be established through past practice, that practice must be consistently exercised over a significant period of time and followed by both parties, or followed by one party and not challenged by the other. See, for example, Internal Revenue Service, 27 FLRA 322; Army and Air Force Exchange Service, 20 FLRA 248. Applying that standard here, we conclude that the condition of employment (availability of bottled water) was established by past practice. We conclude also that there is no basis in the record, or Authority precedent, to conclude that this condition of employment was "limited."
The record establishes that the Respondent furnished bottled water to bargaining unit employees for approximately 16 months before it unilaterally discontinued the practice. Further, the record shows that the Respondent furnished bottled water to bargaining unit employees for 3 months after the city water was certified as potable. There is no doubt that the practice of providing bottled water was known to both parties. In our view, the practice of providing bottled water was consistently exercised for a sufficient period of time so as to "establish" that practice.
More importantly, we reject the Judge's conclusion that the practice of providing bottled water was not established because that practice was of a "limited nature[.]" Judge's Decision at 10. As noted previously, for a condition of employment to be established by past practice, that practice must be followed by both parties or followed by one party and not challenged by the other. As such, the parameters of, or limitations on, the condition of employment must be understood by both parties.
The record before us does not provide a basis on which to conclude that the Union knew, or should have known, of the Respondent's intentions to limit the practice of providing bottled water. There is nothing in the record to show, for example, that at the time the practice was instituted, either the Union or employees were informed of any intended limitations on the practice. Moreover, shortly after the practice was initiated, the Union inquired about the water problem at a labor-management meeting. According to the Respondent's notes regarding that meeting, the Union was "advised that management has provided bottled drinking water on the floors where the problem exists." Respondent's Exh. E, item 13. Nothing in those notes shows that the Union was informed of any limitations on the practice.
The Respondent later stated to the Union that the bottled water was provided as an "interim" measure. G.C. Exh. 7. After that statement, however, the Respondent's notes indicate that, in response to another Union request at another labor-management meeting, the Union "was advised that the bottled drinking [water] will be provided indefinitely until more tests on the tap water can be done." Respondent's Exh. O, item 7. If the Respondent had a consistent intention regarding the practice of providing bottled water, it failed to so inform the Union. Accordingly, we are unable to conclude that the parties followed a known limited practice or that the Union should have, and failed to, challenge that practice.
We note, in this regard, that, consistent with the foregoing discussion, a respondent cannot by unilateral action define the parameters of its bargaining obligations. That is, a respondent cannot, by merely announcing that a practice is of a limited nature, establish limitations on the practice. We are unaware of any support in Authority precedent for the Judge's conclusion in this regard, and the Judge provided none.
Finally, we reject the Judge's conclusion that the Respondent was privileged to terminate the practice of providing bottled water because "an agency [is not] required to bargain over the removal of a condition of employment which came into existance [sic] solely because of an emergency[.]" Judge's Decision at 10. There is no evidence in this case that the practice of providing bottled water was instituted because of an emergency. The Respondent did not argue before the Judge and does not now contend that it decided to provide bottled water for unit employees because of an "emergency." Although the record reveals that both the Respondent and the Union were concerned about the deterioration in the color, odor and taste of the drinking water, there is nothing in the record which suggests that the water problem was ever considered to be an "emergency" situation.
In sum, we conclude that the availability and provision of bottled drinking water is a condition of employment that was established through past practice.
B. The Respondent Violated Section 7116(a)(1) and (5) of the Statute
Where a condition of employment is established for unit employees through past practice or agreement of the parties, changes may not be made in the condition of employment by the agency involved without fulfilling its bargaining obligations. See generally, National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA No. 26 (1990), slip op. at 4-6. Accordingly, and consistent with our decision in DOL, we find that the Respondent was obligated to negotiate with the Union over the decision to discontinue providing bottled water for bargaining unit employees.
We note that, in the instant case, the Respondent argues that it satisfied its obligation to bargain with the Union over the impact and implementation of the decision to discontinue the bottled water. The Respondent contends that it reached agreement with the Union which "provided that if management gave the union 30 days' notice of its intention to remove the bottled water, there would be no further negotiations on the matter . . . ." Opposition at 30. Alternatively, the Respondent argues that it bargained with the Union to impasse over the impact and implementation of the decision to remove the water coolers. We find that the Respondent's contentions have no merit.
The Respondent provides no evidence that the parties agreed that the Respondent only would be required to provide the Union with notice of its decision to cease providing bottled water. In fact, the evidence before us indicates the contrary. The Respondent asserts, in this regard, that:
[A]t the February, 1988, quarterly labor relations meeting the [Respondent] and the [U]nion bargained over the impact and implementation of the removal of the water and arrived at an agreement. That agreement provided that if management gave the [U]nion 30 days['] notice of its intention to remove the bottled water, there would be no further negotiations on the matter . . . .
Opposition at 30. The Respondent's notes from the February 1988 meeting, however, state only that the Union "was told that [it] would be given at least 30 days['] notice prior to the discontinuance of the bottled water." Respondent's Exh. O, item 7. The notes do not address the Union's response to this information.
Consistent with the overall obligation to bargain, one party cannot establish an agreement merely by "telling" the other party what the agreement is. Moreover, the Union acknowledges that it requested, and the Respondent agreed to provide, 30 days' notice of management's intention to discontinue providing bottled water. The Respondent's reference to the 30 days' notice in its notes, as well as subsequent references to this notice (Respondent's Exh. Q), do not implicitly or explicitly support a conclusion that the 30 days' notice was intended as a substitute for bargaining. Rather, the Union could reasonably believe that the Respondent would give such notice of its intent so that the parties could bargain over negotiable matters at the appropriate time.
A waiver of bargaining rights must be clear and unmistakable. See, for example, Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981). See also, for example, United States Department of the Navy, United States Marine Corps (MPL), Washington, D.C. and Marine Corps Logistics Base, Albany, Georgia, 38 FLRA No. 59, slip op. at 5 (1990). The evidence before us does not establish that the Union clearly and unmistakably agreed that the practice of providing bottled water could be terminated without bargaining, provided the Union was given 30 days' notice. As such, we reject the Respondent's assertion that the parties had agreed that bargaining was not required.
Finally, we reject the Respondent's assertion that it was privileged to terminate the practice of providing bottled water because it had "bargained with the [U]nion to impasse over impact and implementation." Opposition at 34. The Respondent notes, in this regard, that "[a]ll the [U]nion's proposals were unacceptable to management because they improperly addressed the substance of the decision to discontinue an improper practice." Id. at 32.
Consistent with our decision in DOL, the Union was not limited to bargaining over the impact and implementation of the Respondent's decision. Instead, the Respondent was obligated to bargain over its decision to terminate the practice of providing bottled water. See DOL, 37 FLRA at 36. The record establishes that the Union requested bargaining over both the substance and the impact and implementation of the decision, and that the Respondent steadfastly refused to negotiate with the Union over the decision. Accordingly, as the Respondent unlawfully preempted bargaining over the substance of the decision, the fact that the parties may have reached impasse in their negotiations did not enable the Respondent unilaterally to implement its decision.
VI. Summary
Based on the foregoing discussion, and consistent with our decision in DOL, we conclude that (1) the availability of potable water constituted a condition of employment, (2) the Respondent's provision of bottled water, an aspect of the availability of potable water, constituted a condition of employment established by past practice, (3) bargaining over continuation of the practice was not inconsistent with Federal law or Comptroller General decisions, (4) the Union did not waive its right to bargain over changes in that condition of employment, and (5) the Respondent was not privileged to implement that change because the parties had reached impasse. Accordingly, we conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to bargain with the Union over the decision to discontinue the practice of providing bottled water to unit employees and by unilaterally changing an established condition of employment without fulfilling its bargaining obligations.
VII. Remedy
We conclude that the status quo ante remedy requested by the General Counsel is appropriate in this case. Where, as here, management has changed a negotiable condition of employment without fulfilling its obligation to bargain on that change, the Authority will grant a status quo ante remedy in the absence of special circumstances. A return to the status quo ante effectuates the purposes and policies of the Statute and ensures that the obligation to bargain is not rendered meaningless.
The Respondent has not established any special circumstances to show that a status quo ante remedy is unwarranted in this case. See DOL; United States Army Adjutant General, Publications Center, St. Louis, Missouri, 35 FLRA 631, 634-35 (1990); and Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 35 FLRA 153, 155-56 (1990). Accordingly, we will direct the Respondent to, among other things, restore the practice of providing bottled water as it existed prior to the Respondent's unlawful change.
VIII. 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 U.S. Department of Labor, Washington, D.C., shall:
1. Cease and desist from:
(a) Unilaterally ceasing to provide bottled drinking water and removing water coolers or making other changes in conditions of employment without first notifying the American Federation of Government Employees, AFL-CIO, National Council of Field Labor Locals, Local 1748, the agent of the exclusive representative of their employees, about any such proposed change and providing it with an opportunity to negotiate concerning such change.
(b) In any like or related manner, interfering with, restraining, or coercing their 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) Restore bottled water to all floors and offices in the Federal Building, 911 Walnut Street, Kansas City, Missouri where it existed prior to its removal on December 31, 1988 and continue to provide bottled drinking water to bargaining unit employees.
(b) Notify and, upon request, negotiate with the American Federation of Government Employees, AFL-CIO, National Council of Field Labor Locals, Local 1748, the agent of the exclusive representative of their employees, concerning any change in the availability of bottled water.
(c) Post at its facilities in the Federal Building, 911 Walnut Street, Kansas City, Missouri, 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 Administrator of the Office of the Assistant Secretary for Administration and Management, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to their respective 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) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VII, 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 cease to provide bottled drinking water or make other changes in conditions of employment without first notifying the American Federation of Government Employees, AFL-CIO, National Council of Field Labor Locals, Local 1748, the agent of the exclusive representative of our employees, about any such proposed change and providing it with an opportunity to negotiate concerning such change.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.
WE WILL restore bottled water to all floors and offices in the Federal Building, 911 Walnut Street, Kansas City, Missouri Street, where it existed prior to its removal on December 31, 1988, and continue to provide bottled drinking water to bargaining unit employees.
WE WILL notify and, upon request, negotiate with the American Federation of Government Employees, AFL-CIO, National Council of Field Labor Locals, Local 1748, the agent of the exclusive representative of our employees, concerning any change in the availability of bottled drinking water.
________________________________
(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 VII, Federal Labor Relations Authority, whose address is: 535 16th Street, Suite 310, Denver, Colorado 80202, and whose telephone number is: (303) 844-5224.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. The Respondent cited 25 Comp. Gen. 920 (1946), 24 Comp. Gen. 56 (1944), 17 Comp. Gen. 698 (1938), 6 Comp. Gen. 619 (1927), and 5 Comp. Gen. 698 (1938) in its post-hearing brief.
2. The Judge relied on U.S. Department of Defense, The Adjutant General, Massachusetts National Guard, Boston, Massachusetts, Case No. 1-CA-80340, ALJ Decisions Reports No. 85 (Nov. 6, 1989); and U.S. Department of Labor Washington, D.C. and U.S. Department of Labor, Employment Standards Administration Boston, Massachusetts, Case Nos. 1-CA-80008, 80015, 80065, OALJ-89-70 (Apr. 27, 1989). No exceptions were filed to the Judge's decision in the former case. Exceptions to the decision in the latter case were resolved by the Authority in U.S. Department of Labor Washington, D.C. and U.S. Department of Labor, Employment Standards Administration Boston, Massachusetts, 37 FLRA 25 (1990) (DOL).