15:0902(170)NG - AFGE Local 644 and Labor, Mine Health and Safety Administration, Morgantown, WV -- 1984 FLRAdec NG



[ v15 p902 ]
15:0902(170)NG
The decision of the Authority follows:


 15 FLRA No. 170
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 644, AFL-CIO
 Union
 
 and
 
 U.S. DEPARTMENT OF LABOR, MINE
 HEALTH AND SAFETY ADMINISTRATION,
 MORGANTOWN, WEST VIRGINIA
 Agency
 
                                            Case No. O-NG-858
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and raises issues
 concerning the negotiability of three Union proposals.  Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
 
                            Union Proposal /1/
 
          One workspace will be moved to the area currently designated as
       the storage area from the area currently designated as a 4-person
       work area.  The remaining 3 desks in the large room will be
       separated by 6-foot high partitions.
 
    The Agency contends that there is no obligation to bargain over Union
 Proposal 1 because the proposal concerns "open workspace technology,"
 and thus is among those matters negotiable only at the Agency's election
 pursuant to section 7106(b)(1) of the Statute.  The same position was
 taken by the agency with respect to Union Proposal X in American
 Federation of State, County and Municipal Employees, AFL-CIO, Local
 2477, et al. and Library of Congress, Washington, D.C., 7 FLRA 578
 (1982).  The relevant proposal in that case required that employee work
 stations in open areas be separated by padded partitions.  The Authority
 found that the agency therein had failed to show that an open space
 office design bore any relationship to the accomplishment or furthering
 the performance of work or that the partitions would interfere with the
 purpose for which an open space design was chosen.  Consequently, the
 Authority concluded that, "In the absence of such showings, the
 partitions required by the proposal would be merely incidental to the
 performance of the Agency's work and would be principally related to
 matters affecting working conditions of employees."
 
    In the instant case, the Agency points out that the employees
 involved are away from their office "a preponderant amount of the time"
 and that the "open workspace technology provides the optimum balance
 between efficient operations, cost and mission accomplishment." /2/
 However, this observation fails to establish the required nexus between
 the design of the workspace and the furtherance or accomplishment of the
 Agency's work.  /3/ Accordingly, based upon Library of Congress and the
 reasons stated therein, Union Proposal 1 is within the Agency's duty to
 bargain.
 
                             Union Proposal 3
 
          Adequate telephones will be provided for the conduct of
       Government business.
 
    In agreement with the Agency, the Authority finds that Union Proposal
 3, by requiring that sufficient telephones "for the conduct of
 Government business" be furnished, concerns the "technology of
 performing work" within the meaning of section 7106(b)(1) of the
 Statute.  See American Federation of Government Employees, AFL-CIO,
 Local 3760 and Social Security Administration, Disability Analysis
 Branch, Field Assessment Office, 11 FLRA No. 93 (1983) and cases cited
 therein.  Under section 7106(b)(1), such matters are negotiable at the
 Agency's election.  Since the Agency has declined to bargain on the
 proposal, Union Proposal 3 is nonnegotiable.
 
                             Union Proposal 5
 
          Since there are no facilities to clean and calibrate equipment
       at the new location, the inspectors will not be held accountable
       for the cleanliness and accuracy of the instruments cleaned and
       adjusted under less than laboratory conditions.  All time spent
       cleaning and calibrating equipment will be considered hours
       worked.
 
    Both parties herein agree that, historically, the employees affected
 by this proposal have cleaned and calibrated the equipment used in
 carrying out their mine inspection responsibilities.  According to the
 unrefuted assertion of the Agency, /4/ relieving employees of
 responsibility for the accuracy of their testing equipment "could have a
 serious negative effect on the accuracy of their work products . . . . "
 /5/ Thus the proposal, in effect, requires negotiation on performance
 standards, specifically the quality of the employees' work product in
 terms of the accuracy of tests required to be performed.  /6/ In
 National Treasury Employees Union and Department of the Treasury, Bureau
 of the Public Debt, 3 FLRA 769 (1980), affirmed sub nom. National
 Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d
 553 (D.C. Cir. 1982) the Authority held that proposals seeking to
 prescribe performance standards were nonnegotiable because they
 interfered with management's rights pursuant to section 7106(a)(2)(A)
 and (B) of the Statute "to direct" employees and "to assign work."
 Consequently, Union Proposal 5, concerning the accuracy of employees'
 work product, is likewise outside the duty to bargain.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall upon request (or as
 otherwise agreed to by the parties) bargain concerning Union Proposal 1.
  /7/ IT IS FURTHER ORDERED that the petition for review as it relates to
 Union Proposal 3 and 5 be, and it hereby is, dismissed.
 
    Issued, Washington, D.C., August 31, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The numbers assigned to the proposals are those used by the
 parties.
 
 
    /2/ Agency Statement of Position at 2.
 
 
    /3/ The Agency does not challenge the Union's assertion, on p. 2 of
 its petition, that the storage space referenced in the proposal is "an
 essentially unused storage area."
 
 
    /4/ The Union filed no response to the Agency Statement of Position.
 
 
    /5/ Agency Statement of Position at 3.
 
 
    /6/ Pursuant to responsibility assigned by 5 USC 4302(b), the Office
 of Personnel Management has promulgated regulations governing
 performance appraisal systems.  In 5 CFR 430.202, "performance standard"
 is defined as follows:
 
          (d) "Performance standards" are the expressed measure of the
       level of achievement