28:1108(144)NG - NTEU VS HHS, FAMILY SUPPORT ADMINISTRATION
[ v28 p1108 ]
The decision of the Authority follows:
28 FLRA NO. 144
NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF HEALTH AND HUMAN SERVICES, FAMILY SUPPORT ADMINISTRATION Agency Case No. 0-NG-1384
I. Statement of the Case
This case is before the Authority because of a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute) and presents issues concerning the negotiability of two proposals. For the reasons discussed below, we find that both proposals are negotiable.
II. Proposals 1 and 2
6. Employees can select their office in the new building site. Selections will be made by seniority, to be determined by the date service began with the federal government.
7. If employees share offices, they must be able to choose their office mate.
A. Position of the Parties
The Agency argues that these proposals violate management's right to select the technology, methods and means of performing work, and to assign work, under sections 7106(b)(1) and 7106(a)(2)(B) of the Statute.
The Agency indicates that its wish to group employees according to the program in which they work is to facilitate communication between employees, thus enhancing the Agency's ability to accomplish its mission more efficiently. In sup-port of this position, the Agency notes that employees who work together on projects need to share files, computers and data bases. Furthermore, the Agency argues that its telephone system was designed to fit the program grouping arrangement, and that it cannot easily be changed. In essence, the Agency's claim is that the assignment of office space is directly related to the assignment of work, and the methods and means of performing work.
The Union's position is that the Agency's argument regarding the need to place employees in the same work pro-gram in related spaces (corridors) is moot. The Union indicates that the matter is moot because it has agreed to implement its proposals within the program grouping arrangement established by the Agency. The Union claims that office selection is a procedure under 5 U.S.C. 7106(b)(2) and that it addresses a condition of employment. The Union also con-tends that the Agency has failed to show that the proposed arrangement would in any manner affect the Agency's right to select the technology, methods and means of performing work. In addition, the Union notes that the Agency has failed to state which persons and programs would be affected, in which manner productivity would be lost, or how long these assignments would last so as to require permanent room assignment as part of the technology of performing work.
B. Analysis and Conclusion
When an agency asserts that a proposal concerning office space selection interferes with its right to determine the technology, methods and means of accomplishing its work, the agency must demonstrate that its choice of office space design has a technological relationship to accomplishing its work, and that the Union's proposal would interfere with the purpose for which the office space design was adopted. Federal Union of Scientists and Engineers, National Association of Government Employees, Local R1-44 and Naval Underwater Systems Center, Newport, Rhode Island, 28 FLRA No. 54 (1987) (Proposal 1).
In that case, the Authority found that the Agency had established a relationship between the assignment of work space and the performance of the Agency's work, thus making the grouping of employees on a functional basis a method and means of performing work under section 7106(b)(1) of the Statute. Similarly, in American Federation of State, County and Municipal Employees, AFL - CIO, Local 2910 and Library of Congress, 19 FLRA 1180 (1985), the Authority concluded that the agency had demonstrated that the purpose of grouping employees according to their "primary functions" in the same work area was directly related to the agency's operations, and, thus it constituted a method and means of performing work under section 7106(b)(1) of the Statute.
This case, however, is different from the cases cited above. The Union has agreed, in its response brief, to implement these proposals within the program arrangement selected by the Agency. By so doing, the Agency can still accomplish its objective of maintaining communication between employees who work on the same program, and reference mate-rials, computers and telephones would be accessible to all employees. Thus, we find that the Agency's arguments fail to demonstrate that office space and office mate selection, within the framework of the program-based arrangement, would in any manner interfere with the purpose for which the office space design was adopted.
Moreover, the Agency has not established any technological relationship between the space design and the work performed, nor any interference between these proposals and the office design selected by the Agency. Consequently, absent a technological relationship for a given office design, and absent proof of an actual interference of office space design, we find these proposals within the duty to bargain.
We note that the Agency does not argue, and it is not apparent from the record, that the proposals would affect directly or indirectly the working conditions of nonunit employees. Accordingly, this case is distinguishable from American Federation of Government Employees, Local 12, AFL - CIO and department of Labor, 25 FLRA No. 82 (1987), where the agency raised the argument that the proposals were nonnegotiable because they affected the conditions of employment of non-bargaining unit employees.
The Agency also claims that these proposals violate its management right to assign work under 7106(a)(2)(B) of the Statute because the assignment of office space is directly related to the assignment of work. However, we find that these proposals in no manner preclude the Agency from assigning specified duties to its employees. As noted above, the Union has agreed to implement its proposals within the pro-gram arrangement selected by the Agenc