38:1328(104)CA - - EPA, Washington, DC and NFFE Local 2050 - - 1991 FLRAdec CA - - v38 p1328
[ v38 p1328 ]
The decision of the Authority follows:
38 FLRA No. 104
FEDERAL LABOR RELATIONS AUTHORITY
U.S. ENVIRONMENTAL PROTECTION AGENCY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
DECISION AND ORDER
January 8, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
The Administrative Law Judge issued the attached decision in the above-entitled proceeding, finding that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unlocking stairwell doors, thereby changing a condition of employment, without giving the Union notice and an opportunity to bargain over the change. The Respondent filed exceptions to the Judge's decision. The General Counsel did not file an opposition to the exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm those rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended order for the reasons he stated, as amplified below.
II. Respondent Has Not Established That Its Decision Involved Internal Security, the Technology, Methods or Means of Performing Work, or the Contracting Out of Work
The Judge found that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to notify the Union and give it the opportunity to bargain over its decision to unlock stairwell doors between floors where unit employees work. The Judge found that the decision concerned a condition of employment, and that it did not involve the Respondent's internal security practices under section 7106(a)(1) of the Statute or the technology, methods or means of performing work under section 7106(b)(1). The Respondent also had asserted a right not to bargain about its decision because a requirement to do so would affect its authority to make determinations with respect to contracting out work provided by section 7106(a)(2)(B) of the Statute.
A. Internal Security
In finding that the decision did not involve Respondent's right to determine its internal security practices, the Judge found that "[t]he record establishes that the purpose in unlocking the stairwell doors was to facilitate movement by its employees between floors." (Emphasis in original). ALJ Decision at 6. We note in particular that the Respondent emphasized that purpose when it announced its decision to employees in an August 30, 1988, memorandum, that stated in part:
In an effort to improve the ease of movement between floors, . . . Management . . . has successfully negotiated use of the stairwells . . . .
Employees will now be able to move freely between . . . floors via the stairwell, thus reducing the waiting time for elevators.
General Counsel Exh. 2.
Although the Respondent raised as a defense its right under section 7106(a)(1) of the Statute to determine its internal security practices, in its brief on exceptions it stressed the Union's concern about security to substantiate its claim.(1) However, the question is not whether the Union had security concerns, but instead whether the Respondent's purpose for unlocking the doors was related to its own internal security needs. Cf. American Federation of Government Employees Council 214, AFL-CIO and Department of Defense, Department of the Air Force, Air Force Logistics Command, 30 FLRA 1025, 1028 (1988), review denied sub nom. American Federation of Government Employees Council 214 v. FLRA, 865 F.2d 1329 (D.C. Cir. 1988) (order) (agency must show reasonable connection between its security practice and the security of its operations to establish its right under section 7106(a)(1) of the Statute to determine the practice); International Federation of Professional and Technical Engineers, Local 11 and Mare Island Naval Shipyard, Vallejo, California, 32 FLRA 380, 390 (1988) (agency must show link between goal of internal security and practice at issue).
Further, although toward the end of the August 30 memo the Respondent advised the employees that "for your own safety and protection, when the stairwells are unlocked, offices should not be left unlocked or unattended[,]" it is clear that the primary purpose of the change was to "improve the ease of movement between floors." General Counsel Exh. 2. Indeed, by discontinuing the practice of keeping the doors locked in order to improve ease of movement, the Respondent abandoned a procedure that arguably might have been instituted as a security practice. We recognize that management's rights under section 7106 include the right to refrain from acting as well as the right to act. National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 632 (1990). Nonetheless, we fail to see any nexus between Respondent's decision and any concerns involving its internal security practices.
Employee safety at the workplace is a general condition of employment. U.S. Department of the Army, New Cumberland Army Depot, New Cumberland, Pennsylvania, 38 FLRA No. 61, slip op. at 7 (1990). Thus, whether the changed status of the stairwell doors is viewed as enhancing the convenience of movement by employees in the performance of their work, or whether it raises safety concerns held by the employees, it involves a negotiable condition of employment. The unilateral change in that condition of employment violated the Statute, unless the change involved the technology, methods or means of performing work, or affected management's right to contract out, as asserted by the Respondent.
B. Technology, Methods, and Means of Performing Work
Section 7106(b)(1) of the Statute provides, among other things, that an agency may, at its election, negotiate over the technology, methods, and means of performing work. The Respondent asserts that its decision to open the stairwell doors is outside the duty to bargain because the decision involved its right "to determine the technology, methods, and means of performing its work of safeguarding Agency property." Agency's statement of position at 20.
Clearly, the opening of the stairwell doors has no relationship to the technical method of performing work. See American Federation of State County and Municipal Employees, AFL-CIO and Library of Congress, Washington, D.C., 7 FLRA 578, 583 (1982), enf'd sub nom. Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983). Therefore, it does not interfere with the Agency's right to determine the technology of performing work. Rather, the precise question presented here is whether leaving the doors unlocked constitutes a "method," or way of performing work, or a "means," or instrumentality used to accomplish or further the performance of work of the Agency. National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 406-07 (1990). The term "performing work" includes those matters that directly and integrally relate to an agency's operations as a whole. Id. at 407; National Association of Government Employees, Local R14-89 and Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, 32 FLRA 392, 400-01 (1988).
The Judge found that the use of the stairwells between floors is not encompassed within those terms. The Judge based this conclusion on the finding that "it does not directly relate to the agency's work but is incidental thereto. Permitting full access between floors by employees is not concerned with the methods utilized by them to perform their tasks." ALJ Decision at 7. We agree. In addition, we find that the use and availability of the stairwell doors is not integrally related to the Respondent's operations. The new arrangement was provided as an alternative to using the elevators. It has no bearing on the actual performance of work by employees other than possibly allowing them to save the few minutes it might take for an elevator to arrive. There is nothing in the record to indicate that the Respondent required its employees to use the stairwells. Mere convenience, without more, does not qualify a practice as a method or means of performing work that directly or integrally relates to an agency's operations.
C. Contracting Out
The Judge did not specifically address the Respondent's argument that its decision is outside the duty to bargain because it would interfere with its right to contract out security services and the methods by which contractors carry out their responsibilities under section 7106(a)(2)(B) of the Statute. We find that a requirement to bargain over the decision to leave stairwell doors open does not affect the Respondent's right to make determinations with respect to contracting out. The Respondent has shown no connection between the status of the stairwell doors and any limitation on its ability to contract out security services.
III. Order (2)
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we order that the U.S. Environmental Protection Agency, Washington, D.C., shall:
1. Cease and desist from:
(a) Unilaterally changing a condition of employment by unlocking its stairwell doors on the leased floors at the Fairchild Building, Washington, D.C., without first notifying the National Federation of Federal Employees, Local 2050, the exclusive representative of its professional employees, and affording it the opportunity to negotiate with respect to such a change in conditions of employment.
(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Request approval from the owners or management of the Fairchild Building, Washington, D.C., and upon receipt of such approval, relock the stairwell doors on the floors leased by it in that building.
(b) Notify the National Federation of Federal Employees, Local 2050, the exclusive representative of its professional employees, of any intention to change a condition of employment by unlocking the stairwell doors on the floors leased by it at the Fairchild Building, Washington, D.C., and afford the Union an opportunity to negotiate with respect to such change.
(c) Post at its Fairchild Building facility in Washington, D.C., copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Director, Facility Management and Service Division, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, Federal Labor Relations Authority, 1111 - 18th Street, N.W., P.O. Box 33758, Washington, D.C. 20033-0758, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally change a condition of employment by unlocking stairwell doors on the leased floors at the Fairchild Building, Washington, D.C., without first notifying the National Federation of Federal Employees, Local 2050, the exclusive representative of our professional employees, and affording it the opportunity to negotiate with respect to such a change in conditions of employment.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL request approval from the owners or management of the Fairchild Building, Washington, D.C., and upon receipt of such approval, relock the stairwell doors on the leased floors in that building.
WE WILL notify the National Federation of Federal Employees, Local 2050, the exclusive representative of our professional employees, of any intention to change a condition of employment by unlocking the stairwell doors on the leased floors at the Fairchild Building, Washington, D.C., and afford the Union an opportunity to negotiate with respect to such change.
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region III, whose address is:
1111 - 18th Street, N.W., P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8500.
(If blank, the decision does not have footnotes.)
1. ". . . NFFE wished to negotiate . . . because this decision lessened security at the Fairchild building. On it's [sic] face, therefore, the objective of the union was to usurp management's perogative [sic] to determine EPA's internal security practices." Respondent's brief at 15.
2. The Respondent argues that it has no authority to rescind the decision to open the stairwells because that decision must be made by the landlord and must be agreeable to the other tenants in the building. We agree with the Judge that a status quo ante remedy, conditioned on the landlord's approval, is appropriate in these circumstances. We note in this regard that, according to Respondent's August 30, 1988, memorandum, it originally "successfully negotiated use of the stairwells at the Fairchild building."