35:0398(53)NG - - NTEU Chapter 83 and Treasury, IRS - - 1990 FLRAdec NG - - v35 p398



[ v35 p398 ]
35:0398(53)NG
The decision of the Authority follows:


35 FLRA No. 53

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 83

(Union)

and

DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

(Agency)

0-NG-1599

DECISION AND ORDER ON NEGOTIABILITY ISSUE

April 4, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of a proposal requiring the Agency to provide a minimum of 64 square feet of contiguous work space for each bargaining unit employee. The proposal was submitted during negotiations over the relocation of employees of the Assistant Commissioner (International) to the Promenade Level at L'Enfant Plaza. The Agency asserts that this proposal is not negotiable because it interferes with management's rights under the Statute to determine: (1) the technology, methods and means of performing work; and (2) the organization of the Agency. For the following reasons, we find that the proposal is negotiable.

II. The Proposal

Bargaining unit employees affected by this move will have at least 64 feet of contiguous work space.

III. Positions of the Parties

A. The Agency

The Agency asserts that the petition should be dismissed because it is untimely. The Agency claims that, in response to a written request from the Union, the Agency provided the Union with a written allegation of nonnegotiability dated April 19, 1988. The petition was not filed until September 1988.

The Agency contends that the proposal interferes with its rights to determine the technology, methods and means of performing work under section 7106(b)(1) and its organization under section 7106(a)(1) of the Statute.

The Agency states that, for the purpose of enhancing productivity, it adopted the "Automated Examination System" (AES). The AES streamlines and automates the examination process by use of an integrated and centralized computer system. After implementing the AES program the Agency discovered that existing workstations were inadequate and incompatible with the AES. Among problems identified were lack of privacy and adjustable features to accommodate the employees and the computers. Agency statement of position at 6-7.

The Agency estimated that adoption of AES compatible workstations would result in a 15 to 25 percent increase in productivity. The Agency determined that systems or modular furniture designed specifically for use by employees in the AES program would provide "for the containment within reach of the necessary equipment to perform the AES task while making the most efficient use of office space." The Agency also determined that the "AES workstations" would relieve space shortages and provide for greater flexibility and organizational changes. Id. at 7.

The Agency argues that a technological relationship within the meaning of section 7106(b)(1) exists between the use of the AES workstations and the accomplishment of the Agency's work. The Agency contends that the Union's proposal would defeat the space-saving and flexibility features of the workstations and, consequently, the purposes for which the AES workstations were adopted.

The Agency also asserts that the proposal would prevent the establishment of a centralized, functional work grouping of Examination Branch employees. The Agency contends that such a grouping constitutes a method and means of performing work within the meaning of section 7106(b)(1).

The Examination Branch employees slated for relocation to the Promenade Level are from five different locations on two different floors. The Agency contends that the existing decentralization adversely affects the efficiency of that group by handicapping supervision, instruction and communication. The Agency asserts that centralizing the Examination function in one location would enhance efficiency by facilitating supervision, instructional capabilities, communication, "cross over coverage" for absent employees, and a team atmosphere. Agency statement of position at 9-10.

The Agency contends that if it were to provide the bargaining unit employees within the Examination Branch with the amount of space required by the proposal, the Examination Branch would not fit into the space on the Promenade Level that has been designated for it. Consequently, the Agency contends that the proposal would interfere with its right to establish a centralized, functional grouping of the Examination Branch employees. Id. at 9-11.

In response to a contention by the Union that the Agency could accommodate the space requirements of the proposal and establish a centralized, functional grouping of Examination Branch employees by relocating some Taxpayer Service Division employees away from the Promenade Level, the Agency contends that the proposal is inconsistent with the right to determine its organization under section 7106(a)(1). The Agency argues that the right to determine organization encompasses determining where official duty stations will be established and maintained. The Agency contends that its decision to place the Taxpayer Service Division employees on the Promenade Level constituted such a determination.

B. The Union

The Union contends that the petition is timely because the Agency allegation dated April 19, 1988, was unrequested. The Union contends that what the Agency claims was a written request by the Union for an allegation of nonnegotiability was, instead, "a proposal, offered in the context of collective bargaining, on the timetable for implementation of the reorganization when negotiability appeals were involved." Union reply brief at 4. The Union also contends that the Agency subsequently withdrew the written allegation of nonnegotiability that it had provided in April.

The Union contends that the proposal neither prevents the Agency from using the AES workstations nor limits the number of workstations that the Agency can use. The Union denies that the proposal would prevent the Agency from locating all employees in the Examination Branch on the Promenade Level. The Union argues that various alternatives are available that would permit the Agency to both locate the Examination Branch employees in one centralized location on the Promenade Level and provide each bargaining unit employee with 64 square feet of work space. Alternatives suggested by the Union include the relocation of the Taxpayer Service Division or other employees to a floor other than the Promenade Level. The Union contends that such relocation would not interfere with any management rights.

IV. Analysis and Conclusions

A. The Petition Is Timely

On or about March 28, 1988, the Union submitted a memorandum to the Agency entitled "Proposals for the Physical Moves for Examination Division and Taxpayer Service Division A/C (International)." Among the proposals contained in the memorandum were the following:

9. Office space shall be fairly apportioned among the BU employees. Each BU employee shall be provided at least 100 square feet.

. . . . . . .

15. In an effort to demonstrate good faith bargaining, the Agency shall make negotiability determinations on Union proposals prior to the initial negotiation session. If the Agency makes such a determination subsequent to that time, no phase of the reorganization shall be implemented prior to the decision of a negotiability appeal without the concurrence of NTEU Joint Council.

Union reply brief, Attachment 1.

The Agency responded by memorandum dated April 19, 1988, stating, among other things:

Following, for your information, are my initial determinations with respect to your fifteen (15) proposals submitted to me in your March 28, 1988 memorandum;

. . . . . . .

9. Not negotiable as this will adversely impact on management's right to determine the methods and means of performing assigned work. We exercise our right not to negotiate this item.

. . . . . . .

15. With respect to the second half of this proposal I find it is not a proposal subject to negotiation or it requires agreement before negotiations are complete. This memorandum itself, however, fulfills your first half of this proposal and I hope will satisfy your request.

Agency statement of position, Appendix C.

During the negotiations that followed, the Union requested the assistance of the Federal Service Impasses Panel (FSIP). Before the FSIP, the Union identified the issue at impasse as the proposal that is before us now. The Agency took the position that the FSIP did not have jurisdiction over the proposal in light of the Agency's assertion that it was nonnegotiable. By letter to the Agency dated August 18, 1988, the Union, citing section 2424.3 of the Authority's regulations, requested an allegation of nonnegotiability. Receiving no written response to this request, the Union subsequently filed the petition in this case based on the August 18 letter.

In our view, the Union's Proposal 15 in its March 28 memorandum did not constitute a written request for an allegation of nonnegotiability within the meaning of section 2424.3 of the Authority's regulations. Rather, the record establishes that the Union submitted that proposal for negotiation, to establish principles to govern the conduct of negotiations concerning the implementation of the relocation of bargaining unit employees. We conclude, therefore, that the proposal was tantamount to a ground rules proposal and did not constitute a request for an allegation of negotiability. Accordingly, as the Agency's allegation of nonnegotiability dated April 19 was not requested by the Union, it did not start the time limit running on the Union's appeal. See, for example, American Federation of Government Employees, AFL-CIO, National Council of Field Assessment Locals and Department of Health and Human Services, Social Security Administration, 32 FLRA 982, 983-84 (1988).

The circumstances here are distinguishable from those cases in which parties have agreed in writing that an agency will provide a union with a decision on the negotiability of a particular proposal or issue. In those cases, we have held that the agreement constituted a written request for an allegation and a written response to the request under section 2424.3 of our Regulations. Consequently, the petition for review was due to be filed within 15 days from the date of the agreement. For example, American Federation of Government Employees, Local 3836 and Federal Emergency Management Agency, Washington, D.C., 31 FLRA 921 (1988), American Federation of Government Employees, AFL-CIO, National GSA Council and General Services Administration, 21 FLRA 44 (1986). In this case, there was a proposal but no agreement.

The Union's Proposal 15 in its March 28 memorandum had two related parts. One required the Agency to make negotiability determinations prior to the initial bargaining session. The second part required that, if the Agency made a negotiability determination subsequent to the first negotiation session, the Agency would be barred from implementing any phase of the reorganization prior to the decision on any ensuing negotiability appeal. While the Agency agreed to the first part, it rejected the second. Therefore, there was no bilateral agreement similar to those involved in Federal Emergency Management Administration and General Services Administration.

We conclude that based on the Union's August 18, 1988, request for an allegation of nonnegotiability, the petition is timely.

B. The Proposal Does Not Directly Interfere with the Right To Determine the Technology, Methods and Means of Performing Work

The Agency argues that the proposal interferes with its right under section 7106(b)(1) to determine the technology, methods and means of performing work because the proposal: (1) interferes with the purposes for which the AES workstation technology was adopted; and (2) would disrupt the Agency's plan to establish a functional grouping of Examination Branch employees.

1. The Technology of Performing Work

A proposal is negotiable only at the election of management if it directly interferes with management's right to determine the "technology" used in "performing work."

The Authority employs a two-part test to determine whether a proposal directly interferes with this particular management right. In order to sustain such a claim, an agency must show: first, the technological relationship of the matter addressed by the proposal to accomplishing or furthering the performance of the agency's work; and second, how the proposal would interfere with the purpose for which the technology was adopted. For example, Department of Health and Human Services, Public Health Service, Health Resources and Services Administration, Oklahoma City Area, Indian Health Service, Oklahoma City, Oklahoma, 31 FLRA 498, 506 (1988), affirmed sub nom. Department of Health and Human Services, Indian Health Service, Oklahoma City v. FLRA, 885 F.2d 911 (D.C. Cir. 1989) (Indian Health Service).

The Agency asserts that it has adopted AES compatible workstations as a technology of performing work and that the proposal is inconsistent with the purposes for which that technology was adopted. The Agency states, without contradiction by the Union, that such workstations will better accommodate employee use of the equipment that is integral to the AES and will result in a 15 to 25 percent increase in productivity. In our view, a workstation that is specifically designed to provide "containment within reach" and adjustable features to facilitate employee use of computers and other equipment associated with the AES bears a technological relationship to accomplishing or furthering the performance of the Agency's work. Consequently, we find that the Agency's decision to adopt workstations that are compatible with the AES constitutes a determination as to the technology of performing work.

We next address whether the proposal interferes with the purpose for which the technology (the AES compatible workstation) was adopted by the Agency. The Agency states that the adoption of AES compatible workstations achieves several purposes. According to the Agency, the AES compatible workstations: (1) provide for "the containment within reach of the necessary equipment to perform the AES task" and for adjustable features to accommodate employee use of that equipment; (2) provide for greater flexibility in staff expansion and organizational changes; and (3) relieve space shortages. The Union contends that its proposal would not prevent the Agency from adopting the AES compatible workstation or limit the number of such workstations that the Agency can use.

For the following reasons, we reject the Agency's claim that the proposal is inconsistent with the purposes for which the Agency adopted AES compatible workstations, except insofar as purposes (2) and (3) concern conserving space. As to conserving space, we find, further, that no technological relationship between conserving space and performing the Agency's work within the meaning of section 7106(b)(1) has been shown.

The proposal is limited to requiring that bargaining unit employees be allotted a specified amount of work space. The proposal does not interfere with the Agency's first purpose in adopting the AES compatible workstation. A proposal regarding the total amount of contiguous space to be allotted to each employee does not prevent the Agency from placing equipment within the workstation "within reach" of the employee and does not prevent the Agency from providing adjustable features to facilitate use of equipment. The Agency's second purpose--flexibility for staff expansion and organizational changes--is based upon: (1) the portability of the workstation; that is, the relative ease with which partitions and modules can be reconfigured; and (2) the ability to place more workstations in a given amount of space to accommodate staff expansion. The proposal does not interfere with the portability features of the workstation.(1) The proposal could, however, beyond a certain point, limit the Agency's ability to place an increased number of employees in a given amount of space. In addition, the proposal clearly limits the Agency's ability to accomplish its third purpose of relieving space shortages.

In support of its desire to save space, the Agency states that reducing the need for additional space will reduce the portion of the Agency budget attributable to space and housing. Agency statement of position at 7. There is no showing here, however, that there is a technological relationship between the conservation of work space and the performance of the work of the Agency. The fact that an action may promote economy of operations does not bring that action within the scope of the right to determine the technology of performing work. Federal Employees Metal Trades Council v. FLRA, 778 F.2d 1429, 1432 (9th Cir. 1985) (method of distributing paychecks to unit employees held not to be within the technology, methods and means of performing work notwithstanding that the agency "can save a substantial amount of money by mailing checks instead of by hand delivery at the worksite").

Because there is no showing that the Union's proposal would prevent the Agency from establishing a workstation that is AES compatible, we reject the Agency's argument that the proposal interferes with the purpose for which the "technology" of AES compatible workstations was adopted. Because there is no showing that the overall size of the AES compatible workstation is encompassed within management's right to determine the technology of performing the Agency's work, we reject the Agency's argument that by limiting the amount of space the Agency could save with the AES compatible workstations, the proposal interferes with the Agency's right to determine the technology of performing its work.

In sum, the Agency has established a technological relationship between the AES compatible workstation and the performance of its work only insofar as the workstation possesses AES compatible features--that is, containment of equipment within reach of the employee and adjustable features to accommodate employee use of AES equipment. The Agency has not established that the technological relationship extends to the total amount of space that the AES compatible workstation will occupy. The proposal does not interfere with the purpose that is integrally related to the technological relationship--that is, those features of the workstation that make it AES compatible. Because there is no technological relationship between the size of the space that the workstation occupies and the performance of the Agency's work, a proposal concerning the overall size of each employee's workspace does not interfere with the Agency's right to determine technology. Therefore, we reject the Agency's contentions in this regard.

2. The Methods and Means of Performing Work

Similar to the analysis regarding interference with the right to determine the technology of performing work, the Authority employs a two-part test to determine whether a proposal directly interferes with the right to determine the "methods and means of performing work." First, an agency must show a direct and integral relationship between the particular method or means the agency has chosen and the accomplishment of the agency's mission. Second, the agency must show that the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. For example, Department of Defense, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia, 35 FLRA No. 10, slip op. at 2 (1990); Indian Health Service. The Authority has construed "method" as referring 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, 273 (1983). "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 Internal Revenue Service, Los Angeles District, 32 FLRA 182, 189-90 (1988), petition for review filed sub nom. Internal Revenue Service, Los Angeles District v. FLRA, No. 88-1550 (D.C. Cir. July 29, 1988). The term "performing work" is intended to include those matters that directly and integrally relate to the Agency's operations as a whole. Federal Employees Metal Trades Council v. FLRA, 778 F.2d at 1431, on remand Federal Employees Metal Trades Council, AFL-CIO and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 25 FLRA 465 (1987).

The Agency states that, pursuant to its right to determine the methods and means of performing work, it plans to establish a centralized, functional grouping of Examination Branch employees. The Agency asserts that it cannot provide 64 square feet of space to each bargaining unit employee within the Examination Branch and fit the Examination Branch into the space allotted for it on the Promenade Level. The Agency contends, therefore, that the proposal prevents it from establishing a functional grouping of Examination Branch employees and, therefore, interferes with its right to determine the methods and means of performing work.

Although the Union does not challenge the Agency's stated purposes for establishing a functional grouping or assert that the functional grouping would not assist in achieving those purposes, the Union questions the importance to the Agency of grouping the Examination Branch employees in one centralized area. The Union asserts that the Agency does not apply the same concept in all branches. Union supplemental submission at 2-3.

The relative importance of a particular "means" of performing work is irrelevant to a determination of whether a proposal interferes with the right to determine the methods and means of performing work. An asserted "means" need not be indispensable to the accomplishment of an Agency's mission to come within the meaning of section 7106(b)(1). Rather, it need only be a matter that is "used to attain or make more likely the attainment of a desired end" or "used by the agency for the accomplishing or furthering of the performance of its work." American Federation of Government Employees, Local 2441 v. FLRA, 864 F.2d 178, 186 (D.C. Cir. 1988), quoting New York Council, Association of Civilian Technicians v. FLRA, 757 F.2d 502, 509-10 (2d Cir. 1985). Establishing a "functional grouping" of employees constitutes the methods and means of performing work under section 7106(b)(1) where it is shown that the performance of an agency's work is facilitated by the ability to group employees based on the functions which they perform. For example, American Federation of State, County and Municipal Employees, AFL-CIO, Local 2910 and Library of Congress, 19 FLRA 1180 (1985).

We conclude that the establishment of a functional grouping of Examination Branch employees constitutes a methods and means of performing work within the meaning of section 7106(b)(1) of the Statute. The stated purpose for establishing a functional grouping of the Examination Branch employees is to facilitate supervision, communication, instructional capability, and "cross over coverage" for absent employees and to create a team atmosphere. Agency statement of position at 9-10. Given these purposes, the centralized, functional grouping is designed to enhance the ability of the Examination Branch to accomplish its work in a more efficient and effective manner. Consequently, the functional grouping constitutes a means of performing the Agency's work under section 7106(b)(1). See, for example, Federal Union of Scientists and Engineers, National Association of Government Employees, Local R1-144 and Naval Underwater Systems Center, Newport, Rhode Island, 28 FLRA 352, 355 (1987).

As we have determined that the Agency's plan to establish a functional grouping of Examination employees constitutes a means of performing work, we turn to the Agency's contention that the Union's proposal would prevent the establishment of such a functional grouping. The Agency argues that the proposal would require it to abandon its plan for a centralized, functional grouping because providing 64 square feet of work space per bargaining unit employee would exceed the portion of the Agency's space on the Promenade Level that it has allotted to the Examination Branch.

We reject the Agency's assertion that the proposal requires the Agency to abandon a functional work grouping of Examination Branch employees. Floor plans submitted by the parties indicate that there is room on the Promenade Level to provide 64 square feet of space for each bargaining unit employee in the Examination Branch. Agency supplemental submission, Appendices A and B; Union supplemental submission, Exhibits 1 and 2. We acknowledge that adjustments would be required in the space currently allocated for purposes other than bargaining unit employee workstations on that floor. Although the Union suggests several adjustments to accommodate 64 square feet of space for bargaining unit employees, we will not consider each of the alternatives suggested by the Union because the proposal does not specify any particular adjustment. Moreover, we do not pass on the feasibility or merits of any of the Union's various suggestions.

Because the proposal does not prevent the Agency from establishing a functional grouping of Examination Branch employees, the proposal does not defeat the purpose for which the functional grouping was established. Based on the foregoing reasons, we conclude that the proposal does not directly interfere with the Agency's right to determine the methods and means of performing work.

C. The Proposal Does Not Directly Interfere with the Agency's Right To Determine Its Organization

The Agency asserts that the proposal would interfere with the Agency's right to determine its organization if the proposal necessitated adoption of one of the Union's suggestions for implementing the proposal--the relocation of the Taxpayer Service Division employees to another floor of the building.

The right of an agency under section 7106(a)(1) to determine its organization refers to the administrative and functional structure of an agency, including the relationships of personnel through lines of authority and the distribution of responsibilities for delegated and assigned duties. See, for example, Federal Employees Metal Trades Council AFL-CIO and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 25 FLRA 465, 473 (1987). This right encompasses the determination of how an agency will structure itself to accomplish its mission and functions. This determination includes such matters as the geographic locations in which an agency will provide services or otherwise conduct its operations,(2) how various responsibilities will be distributed among the agency's organizational subdivisions,(3) how an agency's organizational grade level structure will be designed,(4) and how the agency will be divided into organizational entities such as sections.(5)

1. The Relationship of Work Location to Management Rights Generally

The Agency's contention that the proposal could conflict with its management right under section 7106(a)(1) to determine organization must be viewed in the context of Authority precedent regarding proposals that concern the location in which employees will perform assigned duties. In one line of cases, the Authority has held that the location in which employees perform the normal duties of their jobs is negotiable unless a relationship exists between job location and job duties. For example, American Federation of Government Employees, AFL-CIO, Local 3369 and Social Security Administration, Cypress Hills District Office, 31 FLRA 1110 (1988) (proposal that employees be allowed "working smoke intervals" during which they would bring work to a designated smoking area held negotiable). In another line of cases, as discussed above, proposals relating to office-space assignments that would defeat an agency's purpose in establishing functional groupings of employees where such grouping has been shown to constitute a "means" of performing work have been found to be outside the duty to bargain. The Authority also has held in a third line of cases that where a link is shown between an agency's internal security practices and the collocation of specific employees and specific facilities, a proposal to relocate the facilities conflicts with management's right to determine internal security practices. American Federation of Government Employees, Local 644, AFL-CIO and U.S. Department of Labor, Occupational Safety and Health Administration, 21 FLRA 658 (1986) (Proposal 5) (proposal to relocate a library and convert space to offices held nonnegotiable).

These three lines of cases establish that the determination of the location in which employees will perform their duties is negotiable unless it is shown to be directly and substantively related to the exercise of a particular management right. Here, the Agency has made no such showing that locating the Taxpayer Service Division employees either on the Promenade Level or in proximity to the Examination Branch employees is directly and substantively related to management's rights with respect to internal security, job duties, or the performance of the agency's work.

Rather, the Agency contends that its decision to place the Examination Branch and the Taxpayer Service Division on the Promenade Level of the building at L'Enfant Plaza constitutes the designation of official duty stations. Relying on Authority decisions holding that the management right to determine organization under section 7106(a)(1) encompasses the designation of official duty stations, the Agency claims that the proposal conflicts with that right if it would require the relocation of either group of employees within the building.

2. The Relationship Between Official Duty Station and the Right To Determine Organization

"Official station," "duty station," and "post of duty" are similar terms used in Federal sector personnel and administrative contexts to connote the location in which an employee is assigned to work. Nonetheless, they do not have a uniform, precise meaning. In some instances, the terms are defined as the city, county, and state in which an employee is assigned to work. For example, Federal Personnel Manual Supplement 296-33, 35-4. In other instances they are defined as "the building or other place" where an employee regularly reports for duty. Federal Travel Regulations, 41 C.F.R. § 302-1.4(j). In yet other instances they are used to mean the "agency's premises" (such as a vessel in Detling v. U.S., 432 F.2d 462 (Ct.Cl. 1970)) or the "job site" (such as a dam site in McConnell v. U.S., 5 Cl.Ct. 785 (1984)). However, such terms usually refer to something more general than a work area or floor within a building.

The Authority has held that the right to determine organization encompasses determinations of where official duty stations will be established and maintained. See, for example, National Treasury Employees Union, Atlanta, Georgia and U.S. Department of the Treasury, Internal Revenue Service, Jacksonville District, 32 FLRA 886 (1988) (finding nonnegotiable a proposal that would have prevented an agency from changing the building in which the work of certain positions would be performed in connection with a reorganization of the units to which the positions were assigned) and American Federation of Government Employees, AFL-CIO, Local 3805 and Federal Home Loan Bank Board, Boston District Office, 5 FLRA 693 (1981) (finding nonnegotiable a proposal that would have prevented an agency from limiting duty stations of incumbent bank examiners to two cities within a multi-state district). However, Authority decisions concerning the relationship between the right to determine organization and the designation of official duty stations, and the like, are closely tied to the specific circumstances involved in the cases.

When read in context, Authority precedent does not support the broad and undiscriminating conclusion that, whenever an agency chooses to call the specific location in which employees are assigned to perform their work an "official duty station," the choice of that location always constitutes an exercise of the right to determine organization under the Statute. Rather, Authority precedent supports a conclusion that, similar to the treatment of work location in connection with other management rights, an agency's designation of "official station," "duty station," or "post of duty" is encompassed within the right to determine organization only insofar as that designation has a direct and substantive relationship to an agency's administrative and functional structure. See, for example, Association of Civilian Technicians, Pennsylvania State Council and Adjutant General of Pennsylvania, 29 FLRA 1292 (1987), Decision on Reconsideration, 31 FLRA 824 (1988) (Proposal 5); National Treasury Employees Union, Chapter 55 and Internal Revenue Service, Columbia District, Columbia, South Carolina, 15 FLRA 820 (1984); Federal Home Loan Bank Board, Boston District Office, 5 FLRA 693 (1981). For example, where the designation of "official station," "duty station," or "post of duty" flowed from, or reflected, management's determination of the geographical locations in which an agency provided services or otherwise conducted its operations, the designation was directly and substantively related to the functional structure of the agency. See, for example, Adjutant General of Pennsylvania, 29 FLRA 1292. Or, where the designation of "official station," "duty station," or "post of duty" was for purposes of implementing administrative matters, such as reimbursement of travel expenses, it was directly and substantively related to the agency's administrative structure. See, for example, Federal Home Loan Bank Board, 5 FLRA 693.

The Agency argues that the determination of where within the L'Enfant Plaza building the Taxpayer Service Division will be located constitutes the designation of a duty station and is encompassed within the right to determine organization under section 7106(a)(1). However, as discussed above, to come within the scope of the right to determine organization, the determination of "duty station" must have a direct and substantive relationship to the Agency's administrative or functional structure. It is not apparent to us, and the Agency has provided no basis for concluding, that the determination of where in the building at L'Enfant Plaza the Taxpayer Service Division is located has such a relationship to the Agency's administrative or functional structure. Consequently, we reject the Agency's argument that if the proposal necessitates the relocation within the building of the Taxpayer Service Division employees, the proposal interferes with the Agency's right to determine its organization.(6)

D. Conclusion

The proposal in this case involves office environment--a matter "at the very heart of the traditional meaning of 'conditions of employment.'" Library of Congress v. FLRA, 699 F.2d 1280, 1286 (D.C. Cir. 1983). The Authority has found, generally, that proposals concerning reductions in space, space allocation, and the arrangement of space concern conditions of employment and are negotiable unless an agency demonstrates that the proposals are inconsistent with applicable law or regulation. See, for example, American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 25 FLRA 979, 981 (1987). More specifically, the Authority found that a proposal concerning office size was negotiable because, in the absence of a showing that a technical relationship existed between office size and the performance of agency work, office size was merely incidental to the performance of the agency's work but was principally related to matters affecting working conditions. American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477 and Library of Congress, Washington, D.C., 7 FLRA 578, 583 (1982), affirmed as to other matters sub nom. Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983). On the other hand, the Authority found a proposal concerning office size nonnegotiable when, and because, the amount of space proposed was inconsistent with the General Services Administration (GSA) space reduction regulation. Because the GSA regulation constituted a Government-wide regulation, such inconsistency rendered the proposal nonnegotiable under section 7117 of the Statute. American Federation of Government Employees, Local 12, ALF-CIO and Department of Labor, 27 FLRA 363 (1987). Here, the Agency makes no claim, and it is not otherwise apparent, that the amount of space proposed is inconsistent with GSA regulations governing space allotments.

This case presents an example of the tension between competing legitimate interests of employees and management--the employees' concerns about their office environment and management's concerns about achieving economy in office space. These competing interests are not irreconcilable and present the sort of questions collective bargaining is intended to resolve. Compare Federal Employees Metal Trades Council v. FLRA, 778 F.2d 1429, 1432 (9th Cir. 1985). Within the collective bargaining system in the Federal sector, a finding of negotiability means only that a proposal is within the duty to bargain and could legally be implemented, not that the proposal must, or ought to, be implemented. A proposal is exactly what the word implies; it is a plan or offering presented by one party to another for consideration. In collective bargaining one party is not bound to accept the proposal of another party but is free to reject it or seek to modify it during the bargaining process. Thus, an agency has no obligation to abandon what it conceives to be the best interests of the agency merely because it must negotiate on a proposal. American Federation of Government Employees v. FLRA, 798 F.2d 1525, 1530 (D.C. Cir. 1986). Should matters of such basic concern to the parties prevent them from reaching agreement, such concerns can be presented to the Federal Service Impasses Panel (FSIP) in a proceeding pursuant to section 7119 of the Statute.

We take this opportunity to note that, in some cases, agencies have argued against the negotiability of proposals because of the ability of the FSIP to impose contract language on parties. Of course, under the Statute, the possibility that the FSIP may, in fulfilling its mandated role to resolve negotiation impasses, impose a proposal on parties provides no basis for finding that proposal nonnegotiable. Such action by the FSIP is wholly consistent with the collective bargaining process provided by Congress under the Statute.

The FSIP was originally established under E.O. 11491 with the express intention that it "should be above all an impartial body, each of whose members will be concerned with the public interest rather than with the special interests of either party to an impasse." Study Committee Report and Recommendations, August 1969, Which Led to the Issuance of Executive Order 11491, reprinted in Subcommittee on Postal Personnel and Modernization of the House Committee on Post Office and Civil Service, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 at 1239 (Comm. Print No. 96-7). In enacting the Statute, Congress elected to continue the FSIP's existence without any change in its duties. See 5 U.S.C. § 7119. The FSIP is comprised of seven presidential appointees, selected "solely on the basis of fitness to perform the duties and functions involved, from among individuals who are familiar with Government operations and knowledgeable in labor-management relations." 5 U.S.C. § 7119(c)(2).

Consistent with its statutory mandate, the FSIP may use a variety of means to assist the parties in resolving an impasse, including hearings, fact finding and recommendations, mediation, and arbitration. The FSIP is empowered to take whatever action is necessary to resolve an impasse, including ordering parties to agree to specific proposed language. See Council of Prison Locals v. Brewer, 735 F.2d 1497 (D.C. Cir. 1984). When issuing orders, the FSIP considers the reasonableness of any proposal at issue in determining what contract language will be imposed. See Veterans Administration Medical Center, Tampa, Florida v. FLRA, 675 F.2d 260, 265 n.9 (11th Cir. 1982). Further, FSIP decisions are subject to indirect, limited judicial review for legal sufficiency through the Statute's unfair labor practice procedure. Council of Prison Locals v. Brewer, 735 F.2d at 1500.

That Congress was aware of the FSIP's role under the Executive Order program and chose to continue the FSIP under the Statute without any change in its duties further demonstrates congressional approval of that role of the FSIP in the Federal sector collective bargaining process. It is clear that Congress viewed a FSIP order requiring parties to adopt specific proposed language as a desirable alternative in the Federal sector to the strikes, work stoppages, and other forms of labor unrest that have traditionally accompanied the failure of the negotiation process in other sectors. See American Federation of Government Employees, AFL-CIO v. FLRA, 778 F.2d 850, 851-52 (D.C. Cir. 1985) (although strikes were prohibited by the Statute, Congress established the FSIP to, if necessary, order terms of a settlement between parties); and Council of Prison Locals v. Brewer, 735 F.2d 1497 (the Statute commits to the FSIP broad authority to make swift decisions in order to end disputes when the negotiation process has failed). Moreover, we know of no instances where, or assertions that, the FSIP has acted irresponsibly or abused its discretion. On the contrary, the FSIP appears to be functioning as Congress intended.

Based on the foregoing, we conclude that the petition is timely and that the Union's proposal does not directly interfere with management's rights to determine the: (1) technology, methods and means of performing work; or (2) organization of the Agency. Therefore, the proposal is within the duty to bargain.

V. Order

The Agency shall, upon request or as otherwise agreed to by the parties, bargain concerning the Union's proposal.(7)




FOOTNOTES:
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1. In view of our conclusion that the proposal would not interfere with the workstation's portability features, it is unnecessary to determine whether there is a technological relationship between the portability features and the performance of the Agency's work.

2. See, for example, Association of Civilian Technicians, Pennsylvania State Council and Adjutant General of Pennsylvania, 29 FLRA 1292 (1987), Decision on Reconsideration, 31 FLRA 824 (1988) (Proposals 1 and 5).

3. See, for example, id. (Proposal 1).

4. See, for example, American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 26 FLRA 452, 455-57 (1987).

5. See, for example, Congressional Research Employees Association and The Library of Congress, 3 FLRA 737, 737-38 (1980).