24:0842(81)NG - AFGE, National Council of SS Field Office Locals and HHS, SSA -- 1986 FLRAdec NG



[ v24 p842 ]
24:0842(81)NG
The decision of the Authority follows:


 24 FLRA No. 81
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, NATIONAL COUNCIL 
 OF SOCIAL SECURITY FIELD OFFICE LOCALS
 Union
 
 and
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES 
 SOCIAL SECURITY ADMINISTRATION
 Agency
 
                                            Case No. 0-NG-1076
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and concerns the
 negotiability of thirteen Union proposals.  /1/
 
                       II.  Proposal 1 -- Part D.l.
 
          Every employee working on a VDT (VDT Display Terminal) shall be
       required to take a rest break away from his or her machine;  such
       breaks to be for 15 minutes, in addition to regularly scheduled
       breaks, and shall occur after every hour of work on the terminal.
 
                       A.  Positions of the Parties
 
    The Agency contends that the proposal violates its right under
 section 7106(a) to assign work and to determine when the work will be
 performed.
 
    The Union contends that the proposal does not concern the assignment
 of work.  It also contends that the proposal is "essentially an
 arrangement by which the Employer's decision to institute new technology
 would be applied."
 
                        B.  Conclusion and Analysis
 
    Proposal 1 is within the duty to bargain.  We find that for the
 reasons which follow the proposal is not inconsistent with applicable
 laws and Government-wide regulations governing rest periods or with
 management's rights under the Statute.
 
    The Agency relies on the Authority's decision in National Federation
 of Federal Employees, Local 1263 and Defense Language Institute, Foreign
 Language Center, Presidio of Monterey, California, 7 FLRA 723 (1982) to
 support its claim that the proposal is not negotiable.  Such reliance is
 misplaced.  In that case the proposals held nonnegotiable allocated
 specific amounts of time to accomplish particular duties.  In contract,
 the proposal in this case does not speak to whether work will be
 performed, what work will be performed, or when it will be performed --
 this proposal is only concerned with securing periodic rest breaks for
 employees who management assigns to work at video display terminals.
 
    In American Federation of Government Employees, AFL-CIO, Local 3511
 and Veterans Administration Hospital, San Antonio, Texas, 12 FLRA 76,
 84-88 (1983), the Authority held a proposal requiring that certain
 employees "will be given two uninterrupted rest periods during each
 eight hour tour of duty" to be within the duty to bargain.  It found
 that (1) granting rest periods is a matter within an agency's
 discretion;  (2) employees remain in a duty status during their rest
 periods;  and (3) management therefore retains the right to assign work
 to them during their rest periods under section 7106(a)(2)(B).
 Similarly, in American Federation of Government Employees, Local 3342,
 AFL-CIO and Department of Health and Human Services, Social Security
 Administration, 19 FLRA No. 124 (1985), the Authority held that
 scheduling breaks to which employees are entitled based upon the
 parties' agreement is likewise within the duty to bargain.
 
    In the present case, the Agency did not indicate that it would be
 unable to assign VDT work during the rest periods or that non-VDT work
 did not exist.  Therefore, if workload requires, the Agency can assign
 VDT work during the rest periods or assign non-VDT work -- for example,
 filing -- during the rest periods.  Compar American Federation of State,
 County and Municipal Employees, Local 2477, AFL-CIO and Library of
 Congress, 23 FLRA No. 27, slip op. at 4-5 (1986) (proposal would
 preclude agency from assigning work during clothes changing period.)
 
    Thus, the proposal in this case bears no material difference from
 those previously held negotiable in the cited cases.  Accordingly, in
 light of that precedent, we find Proposal 1 to be within the duty to
 bargain.
 
                       III.  Proposals 2 through 12
 
          Proposal 2 -- Part E.1.
 
          Adjustable chair, foot rests and tables to allow for adjustment
       of individual machines to suit each operator shall be available to
       provide optimum comfort for heights, back and tension and the
       minimum amount of physical stress for each operator.  Chairs with
       full length and half length arm rests as well as chairs without
       arm rests shall be provided.
 
          Proposal 3 -- Part E.2.
 
          The above furniture will be adjustable to the extent that each
       employee will be able to achieve a .2m knee clearance between seat
       and table, maximum viewing distance from screen of .7m, screen at
       approximately right angles to line of sight, keyboard at
       approximately .7m above ground and can change arm rest style.
 
          Proposal 4 -- Part E.3.
 
          Dimmer switches will be installed so the VDT operator can
       adjust the illumination from 1600 lux to 300 lux as needed.
 
          Proposal 5 -- Part E.5.
 
          Workstations should be adjustable so that while typing the
       angle of the forearms is 90 to 100 degrees.
 
          Proposal 6 -- Part E.6.
 
          VDT workstations should be adjustable to accommodate the 5th
       and 95th percentiles.
 
          Proposal 7 -- Part E.8.
 
          All working surfaces and the paneling around the workstation
       should be low reflecting.
 
          Proposal 8 -- Part E.9.
 
          Each VDT shall be provided with radiation protection shields.
       Equipment that is already in place must be inspected and fitted
       with such shields.
 
          Proposal 9 -- Part E.12.
 
          Ionizing radiation levels of the VDT'S shall not exceed .5
       millirems per hour when measured at 2" from the screen.
 
          Proposal 10 -- Part E.13.
 
          Each VDT shall have an effective glar shield.
 
          Proposal 11 -- Part E.16.
 
          Terminals shall not be arranged so as to direct the primary
       heat exhausts, without intervening ducts walls or insulation,
       within four (4) feet of the place where any person is stationed
       for periods of time.
 
          Proposal 12 -- Part E.18.
 
          The noise of printers used in the offices will not exceed 60
       decibels at any point in the office.
 
                       A.  Positions of the Parties
 
    The Agency contends the proposals involve the technology of
 performing work under section 7106(b)(1) and are therefore negotiable
 only at its election.  The Agency also contends that it must first
 determine that a health hazard exists before such special equipment can
 be purchased citing Department of the Army, Ohio River Division, Corps
 of Engineers -- National Federation of Federal Employees, Local No. 892,
 63 Comp. Gen. 278 (1984).  In this regard, it is apparently claiming
 that its discretion to purchase the equipment covered by the proposals
 may be limited by standards promulgated in the cited Comptroller General
 (CG) decision.
 
    The Union contends that the proposals do not interfere with the VDT
 technology the Agency has chosen for the new claims modernization
 process.  It also contends the proposals provide an "appropriate
 arrangement for employees affected by the VDT'S."
 
                        B.  Conclusion and Analysis
 
    Proposals 2 through 12 are within the duty to bargain.
 
    As discussed below, the proposals are incidental to and not
 determinative of the VDT technology adopted by the Agency for the
 performance of its work.  They are principally related to matters
 affecting the working conditions of employees using the VDT'S but do not
 interfere with the use of that technology or the purpose for which it
 was adopted.  The proposals therefore would not interfere with the
 Agency's right to determine the technology of performing its work within
 the meaning of section 7106(b)(1).
 
             1.  The proposals do not directly interfere with
 
                management's right to determine the technology used to
 
                perform its work within the meaning of section
 
                7106(b)(1).
 
    To sustain a claim that a proposal concerning conditions of
 employment is negotiable only at the election of management because it
 directly interferes with management's right to determine the technology
 used in performing its work, an agency must establish:
 
          (1) the technological relationship of the proposal to
       accomplishing or furthering the performance of the agency's work;
       and
 
          (2) how the proposal would interfere with the purpose for which
       the technology was adopted.
 
    In the absence of such showings, the proposal is considered
 incidental to the performance of the agency's work and principally
 related to matters affecting the working conditions of employees.  It
 is, if consistent with applicable laws and regulations, within the duty
 to bargain.  American Federation of State, County and Municipal
 Employees, AFL-CIO, Local 2477 and Library of Congress, Washington,
 D.C., 7 FLRA 578, 584 (1982), enforced as to other matters sub nom.
 Library of Congress v. Federal Labor Relations Authority, 699 F.2d 1280
 (D.C. Cir. 1983).
 
    The Authority has previously found that similar equipment related to
 matters affecting the working conditions of employees.  See Social
 Security Administration, Office of Hearings and Appeals, Region II, New
 York, New York, and American Federation of Government Employees,
 AFL-CIO, Local 1760, 19 FLRA No. 47 (1985) (Proposal 16-concerning
 arrangements for isolating word processing equipment that makes
 excessive noise.)
 
    To support its claim that the proposals are nonnegotiable, the Agency
 relies on the Authority's decisions in:  American Federation of
 government Employees, Local 644, AFL-CIO and U.S. Department of Labor,
 Mine Health and Safety Administration, Morgantown, West Virginia, 15
 FLRA 902 (1984).  National Federation of Federal Employees, Council of
 Consolidated Social Security Administration Locals and Social Security
 Administration, 13 FLRA 422 (1983);  and American Federation of State,
 County and Municipal Employees, AFL-CIO, Local 2477 and Library of
 Congress, Washington, D.C., 7 FLRA 578 (1982).  The Agency implies that
 these cases establish that a proposal requiring an agency to provide
 employees with any specified equipment is determinative of the
 "technology of performing work" within the meaning of section
 7106(b)(1).  Such a generalization misstates the Authority's holdings in
 the cited cases.
 
    In Mine Health and Safety Administration and in Social Security
 Administration, the proposals which the Authority found interfered with
 management's right to determine the technology of performing work each
 expressly required the agency to provide equipment which was part of the
 technical method of performing the agency's work -- telephones in the
 former and calculators with memory and percentage functions in the
 latter.  In Library of Congress the Authority found a part of Proposal 9
 concerning the agency's choices of equipment or facilities to be drafted
 so broadly as to require negotiations over all equipment and facilities,
 including those involving the technical method used by the agency for
 performing its work.  The Authority specifically stated in that
 decision, however, that a proposal focusing on particular equipment
 which did not constitute part of the technical method used by an agency
 for accomplishing its work would be within the duty to bargain.
 
    In the present case, the Agency has not established that a
 technological relationship exists between the proposed equipment
 standards and arrangements and performing the Agency's work.  Second, it
 has not established in any event that such standards and arrangements if
 agreed upon would interfere in any way with the purpose for which the
 Agency has adopted VDT technology to perform its work.  Accordingly, it
 follows under Library of Congress that the Agency has not established
 that the proposals directly interfere with its right to determine the
 technology of performing its work.
 
         2.  Comptroller General decisions cited by the Agency do
 
                not render the proposals nonnegotiable.
 
    The Agency claims but has not established, nor is it otherwise
 apparent, that under Comptroller General decisions the Agency is without
 discretion to comply with the proposals, if agreed upon.  An agency
 bears the burden of creating a factual record sufficient for the
 Authority to resolve the negotiability dispute.  National Federation of
 Federal Employees, Local 1167 v. Federal Labor Relations Authority, 681
 F. 2d 886, 891 (D.C. Cir. 1982), aff'g National Federation of Federal
 Employees, Local 1167 and Department of the Air Force, Headquarters,
 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6
 FLRA 574 (1984).
 
    Under the Comptroller General decision cited by the Agency, it is
 clear that personal or special equipment may be purchased if the
 criteria established by the Comptroller General are met.  Ohio River
 Division, 63 Comp. Gen. at 280-81.  That is, the Agency has some, if not
 total discretion in such matters.  The lack of total discretion to
 implement a proposal is not a basis for finding an otherwise negotiable
 proposal outside the duty to bargain.  Lacking total discretion, the
 Agency's duty to bargain extends to such matters as are within its
 discretion.  /2/ American Federation of Government Employees, AFL-CIO,
 Local 32 and Office of Personnel Management, Washington, D.C., 8 FLRA
 409, 411 (1982).  Moreover, the Comptroller General has set forth
 criteria for determining circumstances in which an agency could purchase
 personal equipment in the absence of specific statutory authority.  See
 Secretary of War, 3 Comp. Gen. 433 (1924).  For application of the
 criteria see also Secretary of the Interior, 45 Comp. Gen. 215 (1965)
 and Ohio River Division, 63 Comp. Gen. at 281.
 
                      IV.  Proposal 13 -- Part E.19.
 
          The indoor temperature in the office shall not fall below 65
       degrees and in hot weather, adequate ventilation and air
       conditioning will be provided.
 
                       A.  Positions of the Parties
 
    The Agency contends that the proposal conflicts with the parties'
 National Agreement, Article 9 -- Section 8 (Temperature Conditions).  It
 contends that the National Agreement's procedures should be used to
 resolve issues about the work site's temperature.
 
    The Union contends that the National Agreement provision does not
 waive its right to negotiate appropriate arrangements and procedures for
 a mid-term change in technology.
 
                        B.  Conclusion and Analysis
 
    The proposal is within the duty to bargain.
 
    In Internal Revenue Service, Chicago, Illinois and National Treasury
 Employees Union (NTEU) and NTEU, Chapter 95, 9 FLRA 648, 651 (1982), the
 Authority found that the correction of heating and air conditioning
 problems in office areas affected the working conditions of employees
 and is within the duty to bargain under the Statute.  In the present
 case, the only argument raised by the Agency is that negotiations on the
 proposal are barred by a master agreement.  The record in this case
 fails to provide any basis for substantiating the Agency's assertions.
 Further, to the extent that there are factual issues in dispute between
 the parties concerning the duty to bargain in the specific circumstances
 of this case, these issues may be resolved in other appropriate
 proceedings.  See American Federation of Government Employees, AFL-CIO,
 Local 2736 and Department of the Air Force, Headquarters, 379th Combat
 Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302,
 306 n.6 1984).  In addition, the proposal is not inconsistent with
 Government-wide regulations concerning the temperature in general office
 space.  See 41 CFR