36:0224(26)NG - - AFGE Local 3601 and HHS, Public Health Service, Indian Hospital, Claremont, OK - - 1990 FLRAdec NG - - v36 p224
[ v36 p224 ]
The decision of the Authority follows:
36 FLRA No. 26
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
PUBLIC HEALTH SERVICE
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
June 29, 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 by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of one proposal requiring the Agency to provide a private office for the Medical Staff Quality Assurance employee. The Agency did not file a statement of position and, in its allegation of nonnegotiability, did not provide any reasons in support of its allegation. For the following reasons, we find that the proposal is negotiable.
The Employer agrees to provide a private office for the Medical Staff Quality Assurance employee.
III. Position of the Union
The Union's proposal addresses the work location of the Medical Staff Quality Assurance (MSQA) employee. According to the petition, the Agency moved the MSQA employee from a private office into the Medical Records Department where there are three other desks. Partitions separate the four desks but the partitions "obstruct vision, not sound." Petition for Review at 2.
The Union states that the MSQA employee initiates and maintains confidential records identifying areas of patient care that can be improved and holds discussions regarding those records. The Union asserts that the MSQA employee should have a private office because "discussing the performance of employees, who are physicians/therapists, should not be overheard by other hospital employees." Id. at 1-2. The Union argues that in her current location the MSQA employee finds it "ethically difficult" to discuss the records and claims that under these conditions, "the physicians' privacy is being unnecessarily violated." Id. at 2.
The Union notes that the Agency told the MSQA employee she was "physically moved for supervisory purposes" so that she would be located in the Medical Records Department where her new supervisor and other employees supervised by the new supervisor are located. Id. However, the Union states that the supervisor "has been moved out of her office in Medical Records to an office in Administration." Id. Because the MSQA employee's previous supervisors had offices in Administration, the Union contends that locating the MSQA employee in a private office would permit "supervision [to] be accomplished as before[.]" Id.
IV. Analysis and Conclusion
Proposals concerning reductions in office 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, National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 413 (1990).
The Authority has found that proposals granting employees private offices are negotiable. American Federation of Government Employees, Local 644, AFL-CIO and U.S. Department of Labor, Occupational Safety and Health Administration, 21 FLRA 658, 659-61 (1986) (Proposals 1 and 2) (proposals providing for individual offices for certain employees were found to be negotiable because the agency did not show that a relationship existed between its choice of office space design and the performance of its work). Compare 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, 354-55 (1987) (Proposal 1) (proposal allowing employees to choose their office space was found to be nonnegotiable under section 7106(b)(1) of the Statute because the agency showed that there was a link between the location of employees in workspace and the methods and means of performing work).
Here, the Agency makes no claim, and it is not otherwise apparent, that this proposal concerning the location of the MSQA employee is inconsistent with law, Government-wide rule or regulation, or an agency regulation for which a compelling need exists. The parties bear the burden of creating a record upon which the Authority can make a decision. See National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982), affirming sub nom. 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 (1981). A party failing to meet this burden acts at its peril. Accordingly, we find that the proposal is negotiable.
The Agency shall, upon request or as otherwise agreed to by the parties, bargain c