28:0351(54)NG - NAGE, LOCAL R1-144 VS NAVY, NAVAL UNDERWATER SYSTE



[ v28 p352 ]
28:0351(54)NG
The decision of the Authority follows:


28 FLRA NO. 54


FEDERAL UNION OF SCIENTISTS AND
ENGINEERS, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R1-144

                    Union

      and

NAVAL UNDERWATER SYSTEMS
CENTER, NEWPORT, RHODE ISLAND

                    Agency

Case No. 0-NG-1335

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 7106(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute). This case concerns the negotiability of two proposals.

II. Proposal 1

Persons being moved shall be given the opportunity to bid for the office space twenty days prior to the move. Five days prior to bidding, personnel will be given a copy of their respective allocated branch space designating smoking and non-smoking areas for their perusal. On bidding day a large copy of branch areas will be posted, persons will then list their names in office space they are bidding for. At the C.O.B. on the twentieth day before move, the union steward and/or official will with the branch head determine in accordance to grade and seniority respectively who has successfully bid for each office space.

A. Positions of the Parties

As noted above, other than the petition, the Union has made no submission in this case. As to the meaning of this proposal it has stated only that "the proposal stands as read."

The Agency contends that this proposal fails to take into consideration the assignment of space to nonunit employees. These nonunit employees include unrepresented supervisors as well as technicians and clericals who are members of a bargaining unit separate from that in which the scientists who are the subject of this petition are members. By requiring assignments of allocated branch space based on unit employees' bids, the proposal could deprive those employees not in the unit represented by Local R1-144 of space which they could otherwise occupy. Consequently, it would effectively determine the conditions of employment of nonunit employees and for that reason is not within the duty to bargain.

Additionally, the Agency contends that the proposal would prevent it from establishing functional work groups by placing employees in proximity to others for the purpose of facilitating working relationships. Because of this it contends that while the proposal might not prevent the performance of work, it would seriously impede its execution. Based on this the Agency asserts that it interferes with its rights under section 7106(b)(1) to determine the methods and means of performing work.

B. Analysis and Conclusion

1. Effect on Nonunit Employees

The language of the proposal does not precisely set forth how it is intended to operate in terms of the division of work space between those employees represented by Local R1-144 and those who are not. In our view it is subject to at least two interpretations. One, which the Agency appears to have adopted, is that within each branch the scientists would make their selections from the branch workspace as a whole and then other employees would be assigned to the space which is left. A second plausible interpretation is that the scientists would make their selections from that workspace within each branch which the Agency has allocated for the scientists. The first interpretation would affect nonunit employees to the extent of limiting their possible workspace assignments to that space which remains after the scientists have made their selections. Under the second interpretation, the proposal would have no effect on nonunit employees.

Under the first interpretation the effect on nonunit employees does not present a basis for finding the proposal to be nonnegotiable. Under this interpretation the proposal does not define or directly determine a condition of employment for nonunit employees. It would affect or influence their conditions of employment only in a limited, indirect way in that it would limit the space into which they could be assigned. It stops well short of actually determining their workspace assignments or prescribing the manner in which such assignments would be made. In this regard it is to the same effect as Proposal 1 in Association of Civilian Technicians, Pennsylvania State Council and Pennsylvania Army and Air National Guard, 14 FLRA 38 (1984) which the Authority discussed in American Federation of Government Employees, Local 32, AFL - CIO and Office of Personnel Management, 22 FLRA No. 49 (1986), petition for review filed sub nom. American Federation of Government Employees, Local 32 v. FLRA, No. 86-1447 (D.C. Cir. Aug. 11, 1986).

Under this interpretation, the effect of this proposal is distinguishable from that of the proposals discussed in American Federation of Government Employees, Local 12, AFL - CIO and Department of Labor, 25 FLRA No. 82 (1987). The proposals in that case were subject to an interpretation under which they would have directly determined the location and nature of office space occupied by nonunit employees. For example, they required that private offices be located on the inside core near the main entrance and that no private offices or high partitions could block windows. By contrast, in this case the proposal would affect the conditions of employment of nonunit employees only indirectly.

2. Methods and Means of Performing Work

In the context of section 7106(b) "means" refers to any instrumentality, including an agent, tool, device, measure, plan or policy used by an agency for the accomplishing or furthering of the performance of its work. National Treasury Employees Union and U.S Customs Service Region VIII, San Francisco, California, 2 FLRA 255 (1979). "Methods" refers to the way in which an agency performs its work. National Federation of Federal Employees, Local 541 and Veterans Administration Hospital, Long Beach, California, 12 FLRA 270 (1983).

The Agency states, without opposition by the Union, that the performance of its work is facilitated by the ability to group employees functionally. Requiring workspace assignments to be based solely on employee choice would defeat this purpose. In view of the relationship between the assignment  of workspace on a functional basis and the performance of the Agency's work, and in the absence of anything to contradict the Agency's assertion that such a relationship exists, we find that grouping of employees on a functional basis constitutes a methods and means of performing work under section 7106(b)(1). See American Federation of State, County and Municipal Employees, AFL - CIO, Local 2910 and Library of Congress, 19 FLRA 1180 (1985) (Proposal 1). Compare American Federation of Government Employees, Local 12, AFL - CIO and Department of Labor, 25 FLRA No. 82 (1987). In that decision the Authority found that the agency had not demonstrated that a relationship existed between its choice of office space design and the performance of its work. Absent such a relationship, a union proposal that employee work areas be placed in the outside of the room and that private offices be placed in the inner core did not interfere with the right to determine technology, methods and means of performing work. Unlike Department of Labor, a showing has been made here that a link exists between the location of employees in workspace and furthering the performance of work.

3. Conclusion

The Agency's assertion that this proposal is nonnegotiable because it would affect conditions of employment of nonunit employees is rejected. However, we find it nonnegotiable because it would interfere with the Agency's right under section 7106(b)(1) to determine the methods and means of performing work. We note, however, that consistent with section 7106(b)(1), the Agency may elect to negotiate over this proposal with the Union. Further, the Agency may profit from consultation with representatives of the employees who will actually carry out the work of the Agency in the new work environment. It is conceivable to us that the affected employees could very well have ideas that could add to the effectiveness and resultant efficiencies of such decisions. Nothing in this decision should be construed to prevent the Agency from initiating such discussions.

III. Proposal 2

Access to the office space area on the second floor shall be open.

A. Positions of the Parties

Other than the petition, the Union has made no submission in this case. As to the meaning of this proposal it has stated only that "the proposal stands as read." The  Agency contends that, because of the classified nature of the work to be performed in the area involved in this proposal, the proposal interferes with its right to determine its internal security practices.

B. Analysis and Conclusion

In agreement with the Agency, we find that the proposal violates the Agency's right to establish its internal security practices pursuant to section 7106(a)(1). An agency's right to determine its internal security practices includes those policies and actions which are part of the Agency's plan to secure or safeguard its physical property against internal or external risks, to prevent improper or unauthorized disclosure of information, or to prevent the disruption of the agency's activities. See American Federation of Government Employees, AFL - CIO, Local 32 and Office of Personnel Management, Washington, D.C., 14 FLRA 6 (1984) (Proposal 2), enf'd sub nom. Federal Labor Relations Authority v. Office of Personnel Management, 778 F.2d 844 (D.C. Cir. 1985).

The Agency acknowledges that it has not yet finalized its physical security plans. However, it states that as a part of those plans it must be able to restrict access to the second floor in order to safeguard classified information. It argues that because the proposal requires free access to all work spaces, the proposal forecloses any limitations on access. The Agency's interpretation is compatible with the language of the proposal and the Union has provided nothing to indicate that it is an incorrect one.

In these circumstances involved, we conclude that the determination as to the extent and manner in which access will be restricted or controlled to areas in which classified information is available constitutes a determination of the Agency's internal security practices. Since the proposal would substantively interfere with the