National Treasury Employees Union (Union) and U.S. Customs Service, Region VIII, San Francisco, California (Activity) 

 



[ v02 p255 ]
02:0255(30)NG
The decision of the Authority follows:


 2 FLRA No. 30
 
 NATIONAL TREASURY EMPLOYEES
 UNION
 (Union)
 
 and
 
 U.S. CUSTOMS SERVICE, REGION VIII,
 SAN FRANCISCO, CALIFORNIA
 (Activity)
 
                                            Case No. 0-NG-3
 
                      DECISION ON NEGOTIABILITY ISSUE
 
                                 PROPOSAL
 
    NTEU PROPOSES THAT PPM MANUAL SUPPLEMENT, SUBJECT:  NAMEPLATES FOR
 UNIFORMED PERSONNEL BE WORDED AS FOLLOWS:
 
    1.  PURPOSE
 
    TO TEST THE USE OF NAMEPLATES BY UNIFORMED CUSTOMS OFFICERS.
 
    2.  BACKGROUND
 
    PRESENTLY, UNIFORMED CUSTOMS OFFICERS ARE ONLY REQUIRED TO PROVIDE
 THEIR NAME UPON
 
    REQUEST.  CUSTOMS MANAGEMENT BELIEVES THE USE OF NAMEPLATES IS A
 POSITIVE ACTION THAT WILL
 
    MAKE CUSTOMS APPEAR MORE OPEN AND RESPONSIVE TO THE TRAVELING PUBLIC
 AND IMPORTING COMMUNITY.
 
    3.  ACTION
 
    THE SAN FRANCISCO REGION WILL CONDUCT A SIX MONTH EXPERIMENT ON THE
 WEARING OF NAMEPLATES
 
    ON A VOLUNTARY BASIS BY UNIFORMED AND NON-UNIFORMED EMPLOYEES.  THE
 VOLUNTEERS MAY CHOOSE
 
    WHETHER S/HE USES FIRST NAME AND LAST INITIAL, FIRST INITIAL AND LAST
 NAME, OR BOTH FIRST AND
 
    LAST NAME.
 
    THE NAMEPLATES WILL BE FURNISHED BY THE EMPLOYER.  TWO SETS OF
 NAMEPLATES, ONE FOR THE
 
    EMPLOYEE'S BLOUSE OR SHIRT, AND ONE FOR THE EMPLOYEE'S JACKET OR
 COAT, WILL BE FURNISHED TO
 
    EACH VOLUNTEER.
 
    UPON THE CONCLUSION OF THE SIX MONTH EXPERIMENT, NTEU AND THE
 EMPLOYER WILL MEET TO
 
    EVALUATE THE RESULTS.
 
    4.  EFFECTIVE DATE
 
    THE SIX MONTH EXPERIMENT WILL COMMENCE UPON THE DATE THE NAMEPLATES
 ARE PROVIDED TO THE
 
    VOLUNTEERS.
 
    5.  THE TEST WILL ONLY BE IMPLEMENTED AFTER ALL AFFECTED EMPLOYEES
 HAVE HAD SUFFICIENT OPPORTUNITY TO HAVE THEIR NAMES REMOVED FROM THE
 CURRENT PHONE DIRECTORY IN THEIR AREA.
 
    6.  ANY MANDATORY USE OF NAME TAGS WILL INCLUDE ONLY THE FIRST NAME
 AND LAST INITIAL.
 
    7.  EMPLOYEES HAVE THE OPTION OF USING A PSEUDONYM ON THE NAMEPLATE.
 
    8.  THE EMPLOYER WILL PROVIDE GROMMETS AND NECESSARY ALTERATIONS UPON
 REQUEST ON CLOTHING TO WHICH NAMEPLATES WILL BE ATTACHED.
 
    (PORTIONS OF PROPOSAL IN DISPUTE ARE UNDERSCORED.)
 
                   QUESTIONS HERE BEFORE THE AUTHORITY.
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL RELATING TO THE WEARING
 OF NAMEPLATES BY BARGAINING UNIT EMPLOYEES WOULD VIOLATE SECTION 7106(B)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS (FSLMR) STATUTE AS
 ALLEGED BY THE AGENCY.  /1/
 
                                  OPINION
 
    CONCLUSION:  THE PROPOSAL WOULD VIOLATE SECTION 7106(B) OF THE FSLMR
 STATUTE ONLY INSOFAR AS IT MAKES WEARING A NAMEPLATE "VOLUNTARY." THE
 REMAINDER OF THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN UNDER THE
 STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.8 OF THE AUTHORITY'S
 RULES AND REGULATIONS (44 FED.REG. 44740 ET SEQ.(1979)), THE AGENCY'S
 ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
 BECAUSE IT VIOLATES SECTION 7106(B) IS SUSTAINED IN PART AND SET ASIDE
 IN PART.  /2/
 
    REASONS:  THE RECORD INDICATES THAT THE DISPUTE AROSE AFTER THE
 ACTIVITY DECIDED TO REPLACE ITS EXISTING POLICY OF NOT REQUIRING
 UNIFORMED PERSONNEL TO WEAR NAMEPLATES /3/ WITH A ONE YEAR TEST PROGRAM
 REQUIRING ALL UNIFORMED CUSTOMS OFFICERS TO WEAR NAMEPLATES AS PART OF
 THE OFFICIAL UNIFORM.  THE STATED PURPOSE OF THE NAMEPLATE REQUIREMENT
 IS TO "PERSONALIZE THE CUSTOMS SERVICE AND TO FACILITATE THE PUBLIC'S
 DEALINGS WITH UNIFORMED OFFICERS." /4/ THE AGENCY ASSERTS THAT THE NEW
 REQUIREMENT CONSTITUTES MANAGMENT'S CHOICE OF THE "MEANS OF PERFORMING
 WORK" UNDER SECTION 7106(B)(1) OF THE STATUTE /5/ AND CONTENDS THE
 PROPOSAL VIOLATES THAT SECTION.  THE UNION CLAIMS THAT MANDATORY USE OF
 NAMEPLATES WILL HAVE A SERIOUS ADVERSE IMPACT ON BARGAINING UNIT
 EMPLOYEES.  IN THIS REGARD, IT ASSERTS THAT ITS PROPOSAL IS CONSISTENT
 WITH THE OBJECTIVES OF THE AGENCY IN INSTITUTING THE EXPERIMENTAL
 REQUIREMENT TO USE NAMEPLATES AND MERELY PROVIDES FOR NEGOTIATIONS ON
 APPROPRIATE ARRANGEMENTS, UNDER SECTION 7106(B)(3) OF THE STATUTE, FOR
 EMPLOYEES WHO PERCEIVE THAT THEY WILL BE ADVERSELY AFFECTED BY THE
 EXERCISE OF MANAGEMENT RIGHTS.  /6/ THE VARIOUS PORTIONS OF THE PROPOSAL
 ARE EXAMINED BELOW.
 
    SECTION 3.  (FIRST SENTENCE):  THIS PORTION PROVIDES THAT
 PARTICIPATION IN THE TEST PROGRAM BY BARGAINING UNIT EMPLOYEES WILL BE
 VOLUNTARY.  IT IS ESSENTIALLY CONCERNED, THEREFORE, WITH WHETHER
 EMPLOYEES WILL PARTICIPATE AT ALL IN THE PROGRAM.  THE AUTHORITY AGREES
 WITH THE AGENCY'S CONTENTION THAT THE REQUIREMENT FOR UNIFORMED
 EMPLOYEES TO WEAR NAMEPLATES AS PART OF THE UNIFORM ON AN EXPERIMENTAL
 BASIS CONSTITUTES MANAGEMENT'S CHOICE OF THE "MEANS OF PERFORMING WORK"
 UNDER SECTION 7106(B)(1) OF THE STATUTE.  IN THIS CONNECTION, THE
 UNION'S CONTENTION THAT THE PROPOSAL PROVIDES APPROPRIATE ARRANGEMENTS
 FOR EMPLOYEES WHO WOULD BE ADVERSELY AFFECTED BY THE AGENCY'S
 ESTABLISHING THE EXPERIMENTAL REQUIREMENT TO WEAR NAMEPLATES CLEARLY IS
 WITHOUT MERIT.
 
    THE STATUTE DOES NOT DEFINE THE TERM "MEANS." CONSISTENT WITH THE
 GENERAL RULES OF STATUTORY CONSTRUCTION, /7/ WORDS IN THE STATUTE ARE
 GIVEN THEIR COMMON MEANING UNLESS A CONTRARY LEGISLATIVE INTENT IS
 INDICATED.  THERE IS NOTHING IN THE LANGUAGE OF THE STATUTE OR IN THE
 RELEVANT LEGISLATIVE HISTORY WHICH SUGGESTS THAT THE TERM "MEANS" AS
 USED IN SECTION 7106(B)(1) SHOULD BE GIVEN ANY MEANING OTHER THAN THAT
 COMMONLY ASCRIBED TO IT.  IN THIS REGARD, THE COMMON MEANING OF THE TERM
 "MEANS," ACCORDING TO THE DICTIONARY, IS, IN ESSENCE, ANYTHING USED TO
 ATTAIN, OR MAKE MORE LIKELY THE ATTAINMENT OF, A DESIRED END.  /8/ THUS,
 IN THE CONTEXT OF SECTION 7106(B)(1), IT REFERS TO ANY INSTRUMENTALITY,
 INCLUDING AN AGENT, TOOL, DEVICE, MEASURE, PLAN, OR POLICY USED BY THE
 AGENCY FOR THE ACCOMPLISHING OR THE FURTHERING OF THE PERFORMANCE OF ITS
 WORK.
 
    UNDER THE FOREGOING DEFINITION, THE ACTIVITY'S REQUIREMENT THAT
 UNIFORMED EMPLOYEES WEAR NAMEPLATES WHILE PERFORMING DUTIES AS CUSTOMS
 OFFICERS IS A DECISION AS TO THE "MEANS" OF PERFORMING THE AGENCY'S
 WORK.  THE MISSION OF THE CUSTOMS SERVICE IS TO COLLECT REVENUES FROM
 IMPORTS AND ENFORCE CUSTOMS AND RELATED LAWS.  AS THE CUSTOMS SERVICE
 INDICATES, THE WORK OF ITS OFFICERS IN CARRYING OUT THE AGENCY'S MISSION
 INVOLVES DAILY CONTACT WITH THE IMPORTING COMMUNITY AND THE TRAVELING
 PUBLIC.  BASED ON THE RECORD HEREIN, IT APPEARS THAT, IN ORDER TO
 ENCOURAGE EMPLOYEE COURTESY TOWARD THE PUBLIC, AND THEREBY TO FACILITATE
 THE COOPERATION OF THE PUBLIC, THE ACTIVITY DECIDED TO "PERSONALIZE" THE
 RELATIONSHIP BETWEEN THE CUSTOMS OFFICERS AND THE PUBLIC BY UNDERTAKING
 THE EXPERIMENTAL PROGRAM REQUIRING ITS EMPLOYEE OFFICERS TO WEAR
 NAMEPLATES.  AS SUCH, THE NAMEPLATES CONSTITUTE A "MEANS" OF PERFORMING
 THE WORK OF THE AGENCY;  THAT IS, THEY ARE AN INSTRUMENT USED TO
 ACCOMPLISH THAT ASPECT OF THE WORK OF A CUSTOMS OFFICER WHICH INVOLVES
 CONTACT WITH THE PUBLIC.
 
    THE NEXT QUESTION, THEN, IS WHETHER THAT PORTION OF THE PROPOSAL
 PROVIDING FOR VOLUNTARY PARTICIPATION IN THE NAMEPLATE TEST PROGRAM
 WOULD VIOLATE THE AGENCY'S RIGHT TO SELECT THE USE OF NAMEPLATES AS A
 MEANS OF PERFORMING WORK OR MERELY WOULD ESTABLISH AN APPROPRIATE
 ARRANGEMENT FOR EMPLOYEES ADVERSELY AFFECTED THEREBY.
 
    IN THIS REGARD, SECTION 7106(B)(1) OF THE STATUTE EXPRESSLY PROVIDES
 THAT NEGOTIATIONS ON THE MEANS OF PERFORMING WORK ARE "AT THE ELECTION
 OF THE AGENCY." /9/ THE JOINT EXPLANATORY STATEMENT OF THE COMMITTEE ON
 CONFERENCE CONTAINED IN THE CONFERENCE REPORT THAT ACCOMPANIED THE
 VERSION OF THE BILL WHICH WAS ENACTED AND SIGNED INTO LAW EMPHASIZED
 THAT WHETHER BARGAINING TAKES PLACE ON THE METHODS AND MEANS OF
 PERFORMING WORK IS SOLELY WITHIN THE DISCRETION OF THE AGENCY.  /10/
 
    HOWEVER, SECTION 7106(B)(3) OF THE STATUTE PROVIDES THAT AGENCY
 MANAGEMENT HAS A DUTY TO BARGAIN ON APPROPRIATE ARRANGEMENTS FOR
 EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE OF ITS RESERVED
 AUTHORITY.  THE RELEVANT LEGISLATIVE HISTORY OF THE STATUTE REFLECTS THE
 INTENT OF CONGRESS THAT NEGOTIATIONS ON SUCH ARRANGEMENTS SHOULD NOT
 PREVENT THE AGENCY FROM TAKING THE ACTION INVOLVED.  SPECIFICALLY, THE
 COMMITTEE ON CONFERENCE, IN DEVELOPING THE VERSION OF THE BILL WHICH WAS
 ENACTED AND SIGNED INTO LAW, DID NOT ADOPT THE LANGUAGE OF THE SENATE
 BILL (S. 2640) PROVIDING THAT NEGOTIATIONS ON "PROCEDURES" AND "IMPACT"
 SHALL NOT UNREASONABLY DELAY AND SHALL NOT HAVE THE EFFECT OF NEGATING
 THE EXERCISE OF MANAGEMENT'S RESERVED AUTHORITY.  /11/ RATHER, AS THE
 COMMITTEE EMPHASIZED IN THE CONFERENCE REPORT, NEGOTIATIONS ON SUCH
 MATTERS SHOULD NOT PREVENT THE AGENCY FROM ACTING AT ALL.  /12/ THUS, A
 DETERMINATION AS TO WHETHER THIS PORTION OF THE PROPOSAL IS WITHIN THE
 AGENCY'S DUTY TO NEGOTIATE ON APPROPRIATE ARRANGEMENTS DEPENDS UPON A
 FINDING AS TO WHETHER IT WOULD PREVENT THE AGENCY FROM TAKING THE
 ACTION, I.E., EXERCISING THE MANAGEMENT RIGHT, INVOLVED.  /13/
 
    BY PERMITTING EMPLOYEES TO CHOOSE WHETHER TO PARTICIPATE, THE
 PROPOSAL WOULD ALLOW INDIVIDUAL EMPLOYEES TO DETERMINE WHETHER AGENCY
 MANAGEMENT COULD ACT AT ALL TO IMPLEMENT THE TEST PROGRAM.  IT WOULD, IN
 EFFECT, EMPOWER EMPLOYEES TO NULLIFY THE EXPERIMENT.  CONSEQUENTLY, THIS
 PORTION OF THE PROPOSAL WOULD NOT CONSTITUTE AN APPROPRIATE ARRANGEMENT,
 WITHIN THE MEANING OF SECTION 7106(B)(3), FOR AGENCY EMPLOYEES ADVERSELY
 AFFECTED BY MANAGEMENT'S EXERCISE OF ITS RIGHT TO DETERMINE THE MEANS OF
 PERFORMING WORK BUT WOULD, INSTEAD, PREVENT THE AGENCY FROM ACTING AT
 ALL.  BASED ON THE FOREGOING, THE AGENCY ALLEGATION THAT THIS PORTION OF
 THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SUSTAINED.
 
    SECTION 3 (SECOND SENTENCE);  SECTION 6;  AND SECTION 7:  EACH OF
 THESE DISPUTED PORTIONS OF THE PROPOSAL CARRIES WITH IT AN ASSUMPTION
 THAT EMPLOYEES WILL WEAR NAMEPLATES AS DIRECTED BY THE ACTIVITY.  THE
 EFFECT OF THESE PORTIONS PRINCIPALLY IS TO AVOID POTENTIAL ADVERSE
 EFFECTS ON UNIT EMPLOYEES, WHICH ARE PERCEIVED TO EXIST, BY REQUIRING
 THE USE ON THE NAMEPLATES OF IDENTIFYING SYMBOLS WHICH WOULD NOT REVEAL
 FULLY THE IDENTITY OF THE EMPLOYEE INVOLVED.  THE ADVERSE EFFECTS SOUGHT
 TO BE AVOIDED, AS ALREADY INDICATED, RELATE TO THE POSSIBLE LOSS OF
 OFF-THE-JOB PERSONAL PRIVACY BY EMPLOYEES AND THEIR FAMILIES AND TO
 HARRASSMENT, THREATS, RETALIATION AND PHYSICAL INJURY AT THE HANDS OF
 MEMBERS OF THE TRAVELING PUBLIC OR THE IMPORTING COMMUNITY WITH WHOM THE
 EMPLOYEES HAVE HAD DEALINGS. THE VARIETY OF IDENTIFYING SYMBOLS PROPOSED
 INCLUDES THE EMPLOYEES' FIRST AND LAST NAMES, COMBINATIONS OF ONLY FIRST
 OR ONLY LAST NAMES WITH INITIALS, AND PSEUDONYMS.
 
    AS PREVIOUSLY MENTIONED, THE EXPRESS PURPOSE OF THE ACTIVITY IN
 DIRECTING NAMEPLATES TO BE WORN BY UNIFORMED EMPLOYEES AS A MEANS OF
 PERFORMING WORK IS TO PERSONALIZE THE CUSTOMS SERVICE AND FACILITATE
 DEALINGS WITH UNIFORMED OFFICERS BY THE PUBLIC, APPARENTLY BY ENABLING
 THE LATTER TO IDENTIFY CUSTOMS OFFICIALS BY A NAME RATHER THAN MERELY BY
 A BADGE NUMBER.  THERE IS NO SHOWING BY THE ACTIVITY IN THIS CASE, NOR
 IS IT OTHERWISE APPARENT TO THE AUTHORITY, THAT THE ACTIVITY'S STATED
 PURPOSE WOULD BE ABLE TO BE ACHIEVED ONLY IF A PARTICULAR FORM OF AN
 EMPLOYEE'S NAME WERE TO APPEAR ON HIS OR HER NAMEPLATE, OR ONLY IF AN
 EMPLOYEE'S ACTUAL NAME AS CONTRASTED WITH A PSEUDONYM, AS PROPOSED, WERE
 SO TO APPEAR.  THUS, IT HAS NOT BEEN SHOWN AND IS NOT APPARENT THAT
 NEGOTIATIONS ON THE FORMATS PROPOSED BY THE UNION WOULD PREVENT THE
 ACTIVITY FROM REQUIRING NAMEPLATES TO BE WORN FOR THE PARTICULAR PURPOSE
 INTENDED.  IN THESE CIRCUMSTANCES, THE DISPUTED PORTIONS OF THE PROPOSAL
 PRESENTLY UNDER THE CONSIDERATION WOULD CONSTITUTE APPROPRIATE
 ARRANGEMENTS FOR EMPLOYEES SUBJECT TO BEING ADVERSELY AFFECTED BY
 MANAGEMENT'S ACTION WITHIN THE MEANING OF SECTION 7106(B)(3) OF THE
 STATUTE.  /14/ CONSEQUENTLY, THEY DO NOT VIOLATE MANAGEMENT'S RIGHTS
 UNDER SECTION 7106(B)(1) OF THE STATUTE AND ARE WITHIN THE DUTY TO
 BARGAIN.
 
    SECTION 5:  THIS PORTION OF THE PROPOSAL WOULD ALLOW THE EMPLOYEES
 INVOLVED TIME TO HAVE THEIR NAMES DELETED FROM LOCAL TELEPHONE
 DIRECTORIES BEFORE THE NAMEPLATE TEST PROGRAM COULD BE PUT INTO EFFECT,
 IN ORDER TO PROTECT THEMSELVES, AND THEIR FAMILIES, AS DISCUSSED
 PREVIOUSLY.  THE AGENCY PRINCIPALLY URGES THAT THIS PROPOSAL WOULD DELAY
 IMPLEMENTING THE TEST PROGRAM FOR AN UNREASONABLY LONG TIME-- 6 TO 18
 MONTHS.  IT CONTENDS THAT THIS UNREASONABLE DELAY WOULD HAVE THE EFFECT
 OF NEGATING THE AUTHORITY RESERVED TO MANAGEMENT UNDER SECTION
 7106(B)(1) OF THE STATUTE TO REQUIRE THE WEARING OF NAMEPLATES;  AND,
 THEREFORE, CONCLUDES THAT THIS PART OF THE PROPOSAL IS NOT WITHIN THE
 DUTY TO BARGAIN.  ASSUMING THAT THE PROPOSAL WOULD RESULT IN A DELAY OF
 6-18 MONTHS BEFORE THE PROGRAM COULD BE IMPLEMENTED, AS THE AGENCY
 ASSERTS, IN THE CIRCUMSTANCES OF THE PRESENT CASE THE MANAGEMENT RIGHTS
 PROVISION OF THE STATUTE WOULD NOT, THEREBY, BE VIOLATED.
 
    THE STATUTE AND ITS RELEVANT HISTORY DO NOT IN ANY MANNER REFLECT THE
 CONGRESSIONAL INTENT THAT A DELAY, AS THE AGENCY HERE CLAIMS WOULD IN
 EFFECT NEGATE ITS MANAGEMENT RIGHTS, WOULD RENDER A PROPOSAL OUTSIDE THE
 DUTY TO BARGAIN.  RATHER, AS DISCUSSED EARLIER IN THIS OPINION (SEE
 FOOTNOTES 11 AND 12 AND ACCOMPANYING TEXT) THE RELEVANT LEGISLATIVE
 HISTORY OF THE STATUTE REFLECTS THE INTENT THAT NEGOTIATIONS ON THE
 PROCEDURES MANAGEMENT WILL OBSERVE IN EXERCISING ITS RESERVED RIGHTS
 MUST NOT PREVENT THE AGENCY FROM ACTING AT ALL.  IN THIS REGARD, AS
 ALREADY INDICATED, SUCH LEGISLATIVE HISTORY EXPRESSLY CHRONICLES THE
 DELIBERATE DELETION OF LANGUAGE CONTAINED IN THE SENATE BILL (S. 2640)
 WHICH PROVIDED THAT NEGOTIATIONS ON PROCEDURES GOVERNING THE EXERCISE OF
 MANAGEMENT RIGHTS "MAY NOT HAVE THE EFFECT OF ACTUALLY NEGATING THE
 AUTHORITY RESERVED TO THE AGENCY . . . ." /15/ FINALLY, THE LEGISLATIVE
 HISTORY REFLECTS THE FURTHER INTENT THAT EXCLUSIVE REPRESENTATIVES MUST
 BE ALLOWED TO NEGOTIATE FULLY, UNDER SECTION 1706(B)(2) AND (3) OF THE
 STATUTE, ON PROCEDURES TO BE OBSERVED BY MANAGEMENT IN EXERCISING
 RESERVED RIGHTS UNDER THE STATUTE AND ON APPROPRIATE ARRANGEMENTS FOR
 EMPLOYEES ADVERSELY AFFECTED BY THE EXERCISE OF SUCH RIGHTS.  /16/
 
    TURNING NOW TO THE DISPUTED PROPOSAL HEREIN, WHICH WOULD ALLOW
 EMPLOYEES TIME TO REMOVE THEIR NAMES FROM TELEPHONE DIRECTORIES, THE
 RECORD BEFORE THE AUTHORITY INDICATES THAT IT IS INTENDED TO AVOID, AND
 IS IN SUBSTANCE REASONABLY RELATED TO AVOIDING, THE ADVERSE IMPACT,
 PERCEIVED BY THE UNION, OF MANAGEMENT'S REQUIRING SUCH EMPLOYEES TO WEAR
 NAMEPLATES.  FURTHERMORE, THE RECORD DOES NOT SHOW THAT THE PROPOSAL
 WOULD PREVENT THE AGENCY FROM ACTING AT ALL TO IMPLEMENT THE NAMEPLATE
 EXPERIMENT.  ON THE CONTRARY, THE AGENCY INDICATES THAT AFTER A DELAY OF
 FROM 6-18 MONTHS IT COULD IMPLEMENT THE EXPERIMENT.  /17/ CONSEQUENTLY,
 BASED ON THE MEANING OF THE STATUTE AS REFLECTED IN ITS LEGISLATIVE
 HISTORY (EVEN ASSUMING THAT, AS THE AGENCY ASSERTS, A DELAY OF 6-18
 MONTHS IN IMPLEMENTING THE NAMEPLATE EXPERIMENT WOULD RESULT) THE
 PROPOSAL WOULD NOT VIOLATE SECTION 7106(B) OF THE STATUTE.
 
    SECTION 3 (LAST SENTENCE):  THIS PORTION OF THE PROPOSAL AT ISSUE
 ESSENTIALLY SEEKS TO PROVIDE A ROLE FOR THE UNION IN THE PROCESS OF
 EVALUATING THE RESULTS OF THE EXPERIMENTAL WEARING OF NAMEPLATES.  THE
 DISPUTE CENTERS ON THE PRECISE NATURE OF THE ROLE CONTEMPLATED BY THE
 PROPOSAL.  THE AGENCY ASSERTS, IN THIS REGARD, THAT THE PROPOSAL WOULD
 "MANDATE UNION PARTICIPATION IN THE EVALUATION OF THE NAMEPLATE
 EXPERIMENT, AND IN SUBSEQUENT DECISIONS TO USE OR NOT USE THEM ON A
 PERMANENT BASIS." THE UNION, ON THE OTHER HAND, INDICATES THAT ITS
 UNDERLYING CONCERN RELATES ONLY TO THE "VALIDITY" OF THE EXPERIMENT
 WHICH WILL NOT PROVIDE FOR THE COMPILATION OF MEASURABLE STATISTICS FOR
 COMPARISON PURPOSES.
 
    THEREFORE, THE UNION STATES, THE PROPOSAL FOR THE UNION TO MEET WITH
 THE EMPLOYER TO EVALUATE THE RESULTS OF THE EXPERIMENT MERELY IS
 INTENDED "TO VERIFY THAT A TEST IS ACTUALLY BEING IMPLEMENTED AND THAT
 THE RESULTS WILL BE EVALUATED ON AN OBJECTIVE COMPARISON OF DATA RATHER
 THAN CONJECTURE ON THE PART OF THE AGENCY."
 
    THUS, UNDER THE UNION'S INTERPRETATION OF ITS OWN PROPOSAL, WHICH
 INTERPRETATION IS ADOPTED FOR PURPOSES OF THIS DECISION, THE UNION'S
 ROLE WOULD NOT ENCOMPASS PARTICIPATION EITHER IN THE SUBSTANCE OF THE
 EVALUATION ITSELF, OR IN THE ACTUAL DECISION CONCERNING WHETHER TO USE
 NAMEPLATES IN THE FUTURE.
 
    RATHER, THE UNION WOULD ASSUME THE ROLE OF A REVIEWER TO ASSURE
 ITSELF OF THE VALIDITY OF THE TEST PROCESS AND THE OBJECTIVITY OF THE
 EVALUATION OF ITS RESULTS MADE BY THE AGENCY.  SUCH A NON-CONTROLLING,
 NON-SUBSTANTIVE ROLE IN THE TEST-EVALUATION AND DECISIONMAKING PROCESS
 IS PARTICIPATORY IN A MANNER WHICH, CLEARLY, DOES NOT PREVENT THE AGENCY
 FROM ACTING PURSUANT TO ALL RIGHTS RESERVED TO MANAGEMENT UNDER THE
 STATUTE.
 
    CONSEQUENTLY, BASED ON THE STATED INTENT OF THE UNION AS TO THE
 MEANING AND PURPOSE OF ITS PROPOSAL AS DISCUSSED ABOVE, THE PROPOSAL
 DOES NOT VIOLATE MANAGEMENT'S RESERVED RIGHTS UNDER SECTION 7106(B) OF
 THE STATUTE AND IS WITHIN THE DUTY TO BARGAIN.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 13, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                  FEDERAL LABOR RELATIONS AUTHORITY /18/
 
    /1/ THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, SEC.
 7106 (92 STAT. 1198) PROVIDES IN RELEVANT PART:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
   .          .          .          .
 
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
    (1) AT THE ELECTION OF THE AGENCY, . . . ON THE TECHNOLOGY, METHODS,
 AND MEANS OF
 
    PERFORMING WORK;
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY
 
    AUTHORITY UNDER THIS SECTION;  OR
 
    (3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
 EXERCISE OF ANY
 
    AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
 
    /2/ IN SO DECIDING THAT PORTIONS OF THE PROPOSAL ARE WITHIN THE DUTY
 TO BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROPOSAL.
 
    /3/ DEPARTMENT OF THE TREASURY, BUREAU OF CUSTOMS CIRCULAR PER-2-IC X
 ADM-3, DATED AUGUST 15, 1972, SUBJECT:  PERSONNEL;  DISCLOSURE OF
 IDENTITY.  IN ESSENCE, THE CIRCULAR INDICATES THAT NAMEPLATES ARE NOT IN
 THE BEST INTERESTS OF THE AGENCY OR EMPLOYEES BECAUSE THEY "MIGHT RESULT
 IN THREATENING OR HARASSING TELEPHONE CALLS TO THE EMPLOYEE AND HIS
 FAMILY AT HOME." IT ALSO DIRECTS EMPLOYEES TO FURNISH THEIR NAMES ONLY
 UPON REQUEST WHEN, IN THEIR JUDGMENT, THE REQUESTOR DOES NOT WANT THE
 NAME FOR THE PURPOSE OF HARASSMENT OR RETALIATION AGAINST THE EMPLOYEE
 OR HIS FAMILY.
 
    /4/ PROPOSED POLICIES AND PROCEDURES MANUAL SUPPLEMENT (UNNUMBERED),
 SUBJECT:  NAMEPLATES FOR UNIFORMED PERSONNEL, TRANSMITTED TO THE UNION
 BY THE ASSISTANT REGIONAL COMMISSIONER (ADMINISTRATION) OF THE ACTIVITY
 BY LETTER DATED OCTOBER 12, 1978,
 
    /5/ NOTE 1, SUPRA.
 
    /6/ ID.  THE ADVERSE EFFECTS PERCEIVED BY THE UNION ESSENTIALLY ARE
 THOSE REFERENCED IN NOTE 3, SUPRA.
 
    /7/ SEE, E.G., MERCANTILE BANK AND TRUST CO. V. UNITED STATES, 441 F
 2D 364 (8TH CIR. 1971).
 
    /8/ SEE, E.G., WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY(1976)
 WHICH STATES IN RELEVANT PART AS FOLLOWS:
 
    (S)OMETHING BY THE USE OR HELP OF WHICH A DESIRED END IS ATTAINED OR
 MADE MORE LIKELY;  AN
 
    AGENT, TOOL, DEVICE, MEASURE, PLAN, OR POLICY FOR ACCOMPLISHING OR
 FURTHERING A PURPOSE
 
    . . . .
 
    /9/ NOTE 1, SUPRA.
 
    /10/ THE COMMITTEE STATED AS FOLLOWS:
 
    1.  THE SENATE (SECTION 7218(A)(2)(E)) PROHIBITS NEGOTIATIONS ON THE
 METHODS AND MEANS BY
 
    WHICH AGENCY OPERATIONS ARE TO BE CONDUCTED.  THE HOUSE PERMITS-- BUT
 DOES NOT REQUIRE-- THE
 
    AGENCY TO NEGOTIATE ON SUCH MATTERS (HOUSE SECTION 7106(B)(1)).  THE
 SENATE RECEDES.  THE
 
    CONFEREES WISH TO EMPHASIZE, HOWEVER, THAT NOTHING IN THE BILL IS
 INTENDED TO REQUIRE AN
 
    AGENCY TO NEGOTIATE ON THE METHODS AND MEANS BY WHICH AGENCY
 OPERATIONS ARE TO BE CONDUCTED.
 
   .          .          .          .
 
 
    IN SUM, THE CONFERENCE REPORT FULLY PRESERVES THE RIGHT OF MANAGEMENT
 TO REFUSE TO BARGAIN
 
    ON "METHODS AND MEANS" AND TO TERMINATE BARGAINING AT ANY POINT ON
 SUCH MATTERS EVEN IF IT
 
    INITIALLY AGREES TO NEGOTIATIONS.
 
    S. REP. NO. 95-1272, 95TH CONG., 2D SESS. 153-4(1978).
 
    /11/ THE LANGUAGE IN THE SENATE BILL (S. 2640) WHICH WAS NOT ADOPTED
 PROVIDED AS FOLLOWS:
 
    SEC. 7218.  BASIC PROVISIONS OF AGREEMENTS
 
   .          .          .          .
 
 
    (B) NOTHING IN SUBSECTION (A) OF THIS SECTION SHALL PRECLUDE THE
 PARTIES FROM NEGOTIATING--
 
    (1) PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN EXERCISING ITS
 AUTHORITY TO DECIDE OR ACT
 
    IN MATTERS RESERVED UNDER SUCH SUBSECTION;  OR
 
    (2) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
 IMPACT OF MANAGEMENT'S
 
    EXERCISING ITS AUTHORITY TO DECIDE OR ACT IN MATTERS RESERVED UNDER
 SUCH SUBSECTION. EXCEPT
 
    THAT SUCH NEGOTIATIONS SHALL NOT UNREASONABLY DELAY THE EXERCISE BY
 MANAGEMENT OF ITS
 
    AUTHORITY TO DECIDE OR ACT, AND SUCH PROCEDURES AND ARRANGEMENTS
 SHALL BE CONSISTENT WITH THE
 
    PROVISIONS OF ANY LAW OR REGULATION DESCRIBED IN 7215(C) OF THIS
 TITLE, AND SHALL NOT HAVE THE
 
    EFFECT OF NEGATING THE AUTHORITY RESERVED UNDER SUBSECTION (A).
 
    /12/ S. REP. NO. 95-1272, 95TH CONG., 2D SESS. 158(1978) STATES AS
 FOLLOWS:
 
    (T)HE CONFEREES WISH TO EMPHASIZE THAT NEGOTIATIONS ON SUCH
 PROCEDURES SHOULD NOT BE
 
    CONDUCTED IN A WAY THAT PREVENTS THE AGENCY FROM ACTING AT ALL, OR IN
 A WAY THAT PREVENTS THE
 
    EXCLUSIVE REPRESENTATIVE FROM NEGOTIATING FULLY ON PROCEDURES.
 
    /13/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1999 AND
 ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW
 JERSEY, CASE NO. O-NG-20, 2 FLRA NO. 16, (NOV. 29, 1979), REPORT NO.  .
 
    /14/ NOTE 1, SUPRA.
 
    /15/ NOTE 11 AND ACCOMPANYING TEXT, SUPRA.
 
    /16/ NOTE 12, SUPRA.
 
    /17/ WHILE NOT A CONTROLLING CONSIDERATION, IT DOES NOT APPEAR THAT
 DETRIMENT TO THE AGENCY, WHICH IT GENERALLY ALLEGES WILL RESULT FROM THE
 DELAY IN IMPLEMENTING THE EXPERIMENTAL CHANGE, OUTWEIGHS THE POSSIBILITY
 OF SERIOUS ADVERSE AFFECTS ON EMPLOYEES IN THE UNIT WHICH IT IS CLAIMED
 BY THE UNION WILL RESULT IF EMPLOYEES CANNOT HAVE AN OPPORTUNITY TO TAKE
 ACTION TO MITIGATE THE RISK, WHEN THE CHANGE WOULD AFFECT A POLICY WHICH
 HAS EXISTED TO PROTECT EMPLOYEES SINCE, AT LEAST, 1972.
 
    /18/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
 CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
 STATES SENATE AS A MEMBER OF THE AUTHORITY.