---

39 FLRA No. 41

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3601

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

PUBLIC HEALTH SERVICE

INDIAN HOSPITAL

CLAREMORE, OKLAHOMA

(Agency)

0-NG-1799

(36 FLRA 224)

(38 FLRA 177)

DECISION ON RECONSIDERATION

February 12, 1991

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).⁽¹⁾ It concerns the negotiability of one proposal requiring the Agency to provide a private office for the Medical Staff Quality Assurance employee. The Agency filed a statement of position. The Union filed a response to the Agency's statement of position.

For the following reasons, we find that the proposal is negotiable.

II. Proposal

The Employer agrees to provide a private office for the Medical Staff Quality Assurance employee.

III. Positions of the Parties

A. The Agency

The Agency contends that the proposal is nonnegotiable because it directly interferes with its right to: (1) determine the technology, methods, and means of performing work under section 7106(b)(1) of the Statute; (2) determine its organization and mission under section 7106(a)(1) of the Statute; and (3) assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

As to its argument that the proposal interferes with its right to determine the technology, methods, and means of performing work under section 7106(b)(1), the Agency notes that, pursuant to a reorganization plan, the Medical Staff Quality Assurance (MSQA) employee was to be supervised by the Medical Program Specialist and "was moved into a vacant work-station" so that "all employees supervised by the Medical Program Specialist [would be] in one contiguous work location, thereby improving supervisory controls." Agency's statement of position at 3.

The Agency states that the Authority has found that where an agency: (1) establishes "a relationship between the assignment of work space and the performance of the [a]gency's work"; or (2) demonstrates that "the purpose of grouping employees according to their 'primary function' in the same work area was directly related to the agency's operations[,]" the agency's grouping of employees constituted a method and means of performing work. Id. at 5, citing 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 (1987) (Naval Underwater Systems Center); and American Federation of State, County and Municipal Employees, AFL-CIO, Local 2910 and Library of Congress, 19 FLRA 1180 (1985) (Library of Congress).

Applying those cases to the proposal in this case, the Agency argues that the "performance of the Agency's work is facilitated by the ability to have all employees supervised by the Medical Program Specialist located in one contiguous work space and is a method and means of performing work under section 7106(b)(1)." Id. at 5. The Agency maintains that requiring it to locate the MSQA employee in a private office would "defeat this purpose[.]" Id. at 6. The Agency notes that the MSQA employee "has access to private office space (conference room) located in Administration." Id. at 10. Further, the Agency contends that "[t]here is no other private office space available to which the [MSQA employee] could be assigned[.]" Id. The Agency argues that the proposal would require it to move the MSQA employee out of Medical Records and that moving the MSQA employee "outside the contiguous Medical Records space" would: (1) "separate the employees supervised by the Medical Program Specialist"; (2) "require extra supervisory efforts"; (3) "directly interfere with the purpose of grouping employees according to their 'primary function' in the same work area"; and (4) directly interfere with "supervisory control needed for efficient and effective [A]gency operations." Id.

As the proposal would require it "to negotiate about the technology itself, the particular design and use of [A]gency workspace, and the method and means of accomplishing the [A]gency's work[,]" the Agency contends that the proposal is nonnegotiable. Id. at 6-7.

With respect to its argument that the proposal directly interferes with its right to determine its organization and mission under section 7106(a)(1), the Agency contends that "the right to determine the organization of an agency includes the right to determine its administrative or functional structure" as well as "the right . . . to determine where official duty stations of organizational units and positions in those unit[s] shall be established and maintained." Id. at 7, citing National Treasury Employees Union, Atlanta, Georgia and U.S. Department of the Treasury, Internal Revenue Service, Jacksonville, District, 32 FLRA 886 (1988) (IRS); General Services Administration and American Federation of Government Employees, AFL-CIO, National Council 236, 27 FLRA 3 (1987) (GSA); and American Federation of Government Employees, AFL-CIO, Local 3805 and Federal Home Loan Bank Board, Boston District Office, 5 FLRA 693 (1981) (Federal Home Loan Bank Board).

The Agency argues that "especially in light of the space limitations under which the Hospital management is operating[,]" "the [U]nion's proposal requires the [A]gency to restructure the organization and the [MSQA employee's] position and duty station so as to require that she perform her work in a specific location, a private office[.]" Id. at 8. Further, the Agency argues that "the proposal to provide her with private office space would require . . . displacing other functions determined by management to have a higher priority or contributing more to mission accomplishment than private accommodations for a clerical employee whose major duties are screening medical records." Id. at 8-9 (footnote omitted). Therefore, "[g]iven the crowded conditions, the scarcity of space in the Agency's facility and the budgetary restraints," the Agency maintains that requiring it to "negotiate on providing the [MSQA employee] with a private office would directly interfere with the [A]gency's planned reorganization and require the [A]gency to diminish its service to its patients or to have to construct private office space[.]" Id. at 9. The Agency concludes that requiring it to "negotiate to provide private office space to any employee displaced [] could jeopardize the mission of the Agency." Id.

As to its argument that the proposal interferes with its right to assign employees and its right to assign work under section 7106(a)(2)(A) and (B), the Agency notes that it considers the duties of the Utilization Review clerk to be "sensitive, confidential, and in need of privacy, to the same degree as the [MSQA] employee." Id. at 10. According to the Agency, "management has determined that there is no business necessity for either of these positions to be located in private offices" and, therefore, "the mission of the [A]gency can be more efficiently and effectively accomplished by assigning the [MSQA employee] a work station in Medical Records and utilizing the space form[er]ly occupied by her to house 2 or 3 additional employees involved in the expanded billing operations of the Hospital." Id.

B. The Union

In its petition for review, the Union notes that the MSQA employee 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. Union's Petition for Review at 2. 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. The Union further notes the confidential nature of the MSQA employee's duties and argues that in her current location the MSQA employee finds it "ethically difficult" to discuss the performance records of physicians because, under current conditions, "the physicians' privacy is being unnecessarily violated." Id.

In response to the Agency's statement of position, the Union disputes the Agency's assertion that the proposal directly interferes with the Agency's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute. In this regard, the Union contends that "the Agency is incorrect when stating that all employees supervised by the [Medical Program Specialist] are in one contiguous work location" because "4 appointment clerks who are also supervised by the [Medical Program Specialist] are not 'located in one contiguous work space[,]'" but "are in 4 different locations." Union's Response at 4, 6. The Union also contends that "the Agency is incorrect when stating that supervisory control [over the MSQA employee] has improved." Id. at 4 (emphasis in original). In this regard, the Union again notes that the Medical Program Specialist "moved out of her office in Medical Records to an office located in Administration." Id. (citations to attachment omitted). As the offices of the MSQA employee's previous two supervisors were located in Administration, the Union contends that "'supervisory control' still involves the supervisor and [the] MSQA employee being in separate locations and locating the MSQA employee in a private office would permit supervision to be accomplished as before." Id.

Further, the Union disputes the Agency's assertion that the MSQA employee has access to a conference room as private office space and asserts that the "Agency contradicts itself when it states that the MSQA employee can go to the conference room(s) for discussions, yet it wants the work area of the MSQA employee to be located contiguously for improved supervisory control." Id. at 10 (citation to attachment omitted). The Union notes that the Medical Program Specialist "would have moved out of the Medical Records Department . . . regardless of where the MSQA employee was located[,]" so that "the location of the MSQA employee . . . does not change the fact that the [Medical Program Specialist] and [the] MSQA employee are in separate locations[.]" Id. at 7. Accordingly, the Union contends that "no extra effort(s) to supervise are required[.]" Id.

The Union also argues that the "Agency is incorrect when it states that all of the employees supervised by the [Medical Program Specialist] have the same function." Id. at 5. For example, the Union notes that Medical Records Department employees "primarily pull and file charts, code and check for completeness of inpatient charts, and transcribe medical reports[,]" whereas the "MSQA [employee] monitors and evaluates the care provided to patients and must identify areas of patient care that need improvement." Id. (emphasis in original). The Union further states that the Utilization Review employee, referenced by the Agency, "doesn't spend her entire time working on [Utilization Review] activities; she often does Medical Record Department duties because [Utilization Review] doesn't require a lot of her time." Id. Moreover, the Union disputes the Agency's "contention that there is a relationship of office location to [A]gency operation[.]" Id. at 6. In this regard, the Union notes that for the past 3 years, "the MSQA employee worked apart from the Medical Record[s] Dept. employees . . . simply because of different functions," and that the MSQA employee's location in a different office did "not interfere with the Agency accomplishing its work." Id. at 6, 8. Rather, the Union asserts that the performance of the MSQA employee's work was and "would be facilitated by being located in a private office." Id. at 6. The Union also notes that, as with other hospital employees who work with medical records but do not have their work areas next to the medical record files, it "isn't necessary for the MSQA employee to be located by the medical record files[.]" Id. at 10.

The Union argues that Naval Underwater Systems Center, cited by the Agency, is distinguishable because in this case, the employees "whom the MSQA employee has been moved next to do not have the same functions" and the "location of the MSQA employee in a private office did/will not prevent same employee from performing/accomplishing MSQA work." Id. at 11 (emphasis in original). The Union also distinguishes Library of Congress by stating that the "employees [with] who[m] the MSQA employee has been 'grouped' do not have the same function" and that providing the MSQA employee with a private office will "not conflict with the Agency's operations." Id. at 12 (emphasis in original).

With respect to the Agency's argument that the proposal directly interferes with its right to determine its organization and mission under section 7106(a)(1) of the Statute, the Union asserts that those rights would not be violated because "there is a lot of vacant office space available" that could be used. Id. at 8. The Union also asserts that the Agency "is incorrect when stating that providing a private office for the MSQA employee 'would directly interfere' with the Agency's 'reorganization'" because the "'reorganization' simply involved changing the supervisor of the MSQA employee" and "having a private office will not prevent a change in supervisor." Id. at 8, 9. Moreover, the Union contends that the "accomplishment of an efficient and effective Agency mission can not be 'more' efficient by not providing a private office for the MSQA employee" because, based on the confidential nature of that position, "the MSQA employee will be able to function more efficiently and effectively, as before, in a private office." Id. at 11 (emphasis in original).

The Union distinguishes GSA, cited by the Agency, by stating that the "proposal does not conflict with the Agency's determination of its administrative or functional structure because the proposal does not dictate what that structure will be." Id. at 12 (emphasis in original). The Union also distinguishes Federal Home Loan Bank Board and argues that it "is not relevant" to the situation in this case because the proposal in that case "prevented that [a]gency from determining its organization with respect to particular positions and would have prohibited that [a]gency from acting at all to eliminate those positions." Id. (emphasis in original). Finally, the Union argues that IRS "is not relevant to our situation because our proposal does not state that the MSQA employee will continue to be stationed in a particular office." Id. (emphasis in original). Rather, the Union asserts that the proposal in this case concerns "where employees will perform their work"--a matter the Authority has found previously to be negotiable. Id., citing National Treasury Employees Union and Internal Revenue Service, 28 FLRA 40 (1987) (NTEU) (emphasis in original).

As to the Agency's argument that the proposal directly interferes with its right to assign employees and its right to assign work under section 7106(a)(2)(A) and (B) of the Statute, the Union asserts that "this right isn't violated when simply providing a private office." Id. at 9.

IV. Analysis and Conclusions

For the following reasons, we conclude that the proposal does not directly interfere with the Agency's right to: (1) determine the technology, methods, and means of performing work under section 7106(b)(1); (2) determine the organization and mission of the Agency under section 7106(a)(1); and (3) assign employees and assign work under section 7106(a)(2)(A) and (B). Accordingly, we find that the proposal is negotiable.

A. The Proposal Does Not Directly Interfere with the Right to Determine the Technology, Methods, and Means of Performing Work Under Section 7106(b)(1)

1. The Technology of Performing Work

The Authority employs a two-part test to determine whether a proposal directly interferes with management's right to determine the "technology" used in "performing work." 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).

We reject the Agency's claim that the proposal directly interferes with its right to determine the technology of performing its work because the proposal would require it "to negotiate about the technology itself, the particular design and use of [A]gency workspace[.]" Agency's statement of position at 6-7. We note the Agency's assertion that it moved the MSQA employee into the Medical Records Department so that "all employees supervised by the Medical Program Specialist [would be] in one contiguous work location, thereby improving supervisory controls." Id. at 3. However, we note the Union's assertions that: (1) the MSQA employee's supervisor, the Medical Program Specialist, is located in Administration and not in the Medical Records Department; (2) not all of the employees supervised by the Medical Records Specialist are located in the Medical Records Department; and (3) due to the confidential nature of her duties, the MSQA employee could perform her work more efficiently and effectively if she were located in a private office. Union's Petition for Review at 2; Union's Response at 4, 6. Based on the record before us, we find that the Agency has not demonstrated that there is a technological relationship between the current location of the MSQA employee in the Medical Records Department and the performance of the Agency's work within the meaning of section 7106(b)(1). See National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 404 (1990) (Department of the Treasury) (based on the record before it, the Authority found that the agency did not establish a technological relationship between space allocation and the performance of the agency's work, but that the agency did establish a technological relationship between its decision to adopt certain work stations and the performance of its work).

We also note the Agency's argument that the proposal would require it to move the MSQA employee out of the Medical Records Department because "[t]here is no other private office space available to which the [MSQA employee] could be assigned[.]" Id. at 6. We find that the Agency's argument relates to the merits of the proposal, not to its negotiability, and does not establish that there is a technological relationship between the Agency's use of particular space and the performance of its work within the meaning of section 7106(b)(1). See National Treasury Employees Union and Family Support Administration, Department of Health and Human Services, 30 FLRA 677, 682 (1987) (HHS).

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 violates management's right to determine the "methods and means of performing work." First, an agency must show a direct 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. Department of the Treasury, 35 FLRA at 406-09.

The Authority has construed "method" as referring to the way in which an agency performs its work. Id. at 406. "Means" refers to any instrumentality, including an agent, tool, device, measure, plan or policy used by an agency for the accomplishment or furtherance of the performance of its work. Id. at 407. It need not be indispensable to the accomplishment of an agency's mission. The term "performing work" is intended to include those matters that directly and integrally relate to the agency's operations as a whole. Id.

The Agency argues that the "performance of the Agency's work is facilitated by the ability to have all employees supervised by the Medical Program Specialist located in one contiguous work space and is a method and means of performing work under section 7106(b)(1)." Id. at 5. Therefore, the Agency contends that requiring the Agency to move the MSQA employee out of the Medical Records Department to a private office would "directly interfere with the purpose of grouping employees according to their 'primary function' in the same work area and [with] supervisory control needed for efficient and effective [A]gency operations." Id. at 6.

The Union contends that the MSQA employee can perform her job more effectively in a private office. Union's Petition for Review at 2. Noting the different duties of the MSQA employee and the other employees supervised by the Medical Program Specialist, the Union disputes the Agency's assertion that all of the employees supervised by the Medical Program Specialist have the same function. Union's Response at 5. The Union also notes that four appointment clerks who are supervised by the Medical Program Specialist are not located in the contiguous work space and that the Medical Program Specialist has been moved out of the Medical Records Department to an office in Administration. Therefore, the Union disputes the Agency's assertion that locating the MSQA employee in a private office would directly interfere with the Agency's supervisory control over the employee. Id. at 4, 6; Union's Petition for Review at 2.

We find that the Agency has not established that there is a direct relationship between locating the MSQA employee in the Medical Records Department and the accomplishment of the Agency's mission. This case is distinguishable from Naval Underwater Systems Center and Library of Congress, cited by the Agency. In those cases, the Authority held that the particular agency's determination that it needed a "functional grouping" of its employees in order to perform its work constituted an exercise of the agency's right to determine the methods and means of performing work under section 7106(b)(1).

We note in this case that the Union challenges the Agency's asserted reasons for moving the MSQA employee out of a private office. In particular, the Union asserts that: (1) the employees supervised by the Medical Program Specialist perform different functions and, therefore, do not need to be grouped together; (2) it is not necessary for the MSQA employee to be located near the medical records files; (3) supervisory control has not improved by having the MSQA employee located in the Medical Records Department; and (4) the performance of the MSQA employee's work is facilitated when the MSQA employee is located in a private office. Union's Response at 4-7.

Moreover, the Agency fails to show that the fact that the employees in the Medical Records Department have the same supervisor establishes a "functional grouping" of those employees, or otherwise facilitates the performance of the Agency's work, so as to constitute a method or means of performing work. Based on the record before us, we find that the Agency has not demonstrated that grouping employees together for the convenience of the supervisor or for the effect their location has on supervisory control constitutes a "functional grouping" of employees. See U.S. Environmental Protection Agency, Washington, D.C., 38 FLRA No. 104, slip op. at 5 (1991) (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). Further, while the record indicates that the MSQA employee uses the documents in the Medical Records Department to perform some of her duties, we do not find that fact to be sufficient to alter our finding that no connection has been shown to exist between the use of Agency work space and the performance of the Agency's work.

Accordingly, in these circumstances, we conclude that the proposal does not directly interfere with the Agency's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute. See 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).

B. The Proposal Does Not Directly Interfere with the Agency's Right to Determine Its Organization and Mission Under Section 7106(a)(1)

1. The Right to Determine the Agency's Organization

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. Department of the Treasury, 35 FLRA at 409.

Authority decisions concerning the relationship between an agency's right to determine its organization and the designation of official duty stations are closely tied to the specific circumstances involved in the cases. Department of the Treasury, 35 FLRA at 412. The terms "official station," "duty station," and "post of duty" usually refer to something more general than a work area or floor within a building. For the reasons stated more fully in Department of the Treasury, 35 FLRA at 409-13, we find that, 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 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. Department of the Treasury, 35 FLRA at 412.

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. For the following reasons, we find that the Agency has not established that its determination not to provide the MSQA employee with a private office has a direct and substantive relationship to the Agency's administrative and functional structure.

We note the Agency's argument that, as in IRS, GSA, and Federal Home Loan Bank Board, the proposal would require "the [A]gency to restructure the organization and the [MSQA employee's] position and duty station so as to require that she perform her work in a specific location, a private office[.]" Agency's statement of position at 8. We further note the Agency's argument that "[g]iven the crowded conditions, the scarcity of space in the Agency's facility and the budgetary restraints," providing the MSQA employee with a private office would "directly interfere with the [A]gency's planned reorganization" by requiring the Agency to: (1) "displac[e] other functions determined by management to have a higher priority"; and (2) "diminish its service to its patients or to have to construct private office space[.]" Id. at 8, 9. However, we also note the Union's contentions that the proposal would not directly interfere with the Agency's right to: (1) determine its organization because "there is a lot of vacant office space available" that could be used; and (2) reorganize because the "'reorganization' simply involved changing the supervisor of the MSQA employee" and "having a private office will not prevent a change in supervisor." Union's Response at 8, 9.

Unlike the cases cited by the Agency, the proposal in this case does not designate the specific geographic location of the MSQA employee's office. Although the Agency chooses to call the location of the MSQA employee's office a "duty station," we conclude that in the circumstances of this case, the choice of that location does not constitute an exercise of the Agency's right to determine its organization under section 7106(a)(1) of the Statute. We note that the parties dispute, among other things, the availability of office space to be used as a private office. However, those assertions relate to the merits of the proposal and not to its negotiability. See HHS.

Accordingly, we conclude that the Agency has not established that its determination not to provide the MSQA employee with a private office has a direct and substantive relationship to the Agency's administrative and functional structure, and, therefore, we find that the proposal does not directly interfere with the Agency's right to determine its organization.

2. The Right to Determine the Agency's Mission

The Agency asserts that the proposal directly interferes with its right to determine its mission because the proposal would interfere with the Agency's ability to provide patient care and would require "displacing other functions determined by management . . . [as] contributing more to mission accomplishment[.]" Agency's statement of position at 8-9 (footnote omitted). The Agency further asserts that requiring it to "negotiate to provide private office space to any employee displaced [] could jeopardize the mission of the Agency." Id. at 9. In response to the Agency's assertions, the Union contends that the "accomplishment of an efficient and effective Agency mission can not be 'more' efficient by not providing a private office for the MSQA employee" because, based on the confidential nature of that position, "the MSQA employee will be able to function more efficiently and effectively, as before, in a private office." Union's Response at 11 (emphasis in original).

We conclude that the Agency has failed to establish that negotiating over the proposal would directly interfere with its mission. We find nothing in the proposal itself that would interfere with the Agency's ability to provide patient care or to otherwise accomplish its mission. Accordingly, we reject the Agency's argument that the proposal directly interferes with its right to determine its mission under section 7106(a)(1) of the Statute. See National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 29 FLRA 1288 (1987).

C. The Proposal Does Not Directly Interfere with the Right to Assign Employees and the Right to Assign Work Under Section 7106(a)(2)(A) and (B)

1. The Right to Assign Employees

The right to assign employees means the right to decide the particular position to which an employee will be assigned. NTEU, 28 FLRA at 43. Where management determines it is necessary for some employees to perform the duties of their positions at a different location, the right to assign employees is not involved. NTEU, 28 FLRA at 43-44.

We reject the Agency's argument that the proposal directly interferes with its right to assign employees. The proposal in this case concerns the type of office a particular employee will occupy and not the particular position to which the employee will be assigned. Further, there is no indication in the record that if the MSQA employee is provided with a private office, she would perform duties other than those assigned to her position or that she is not qualified to perform her duties in a private office. See NTEU, 28 FLRA at 44. As the proposal concerns where the MSQA employee will perform her work, we find that it does not involve the exercise of the Agency's right to assign employees. Accordingly, we conclude that the proposal does not directly interfere with the Agency's right to assign employees under section 7106(a)(2)(A) of the Statute. NTEU, 28 FLRA at 45.

2. The Right to Assign Work

The Agency contends that the proposal violates its right to assign work because its mission "can be more efficiently and effectively accomplished by assigning the [MSQA employee] a work station in Medical Records and utilizing the space form[er]ly occupied by her to house 2 or 3 additional employees involved in the expanded billing operations of the Hospital." Agency's statement of position at 10. This contention does not establish that the proposal directly interferes with the Agency's right to assign work. In this regard, we note that the Agency has not shown that the proposal in any way precludes the Agency from assigning specified duties to the MSQA employee or to any other employees. Accordingly, we conclude that the proposal does not directly interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. See National Treasury Employees Union and Department of Health and Human Services, Family Support Administration, 28 FLRA 1108, 1110-11 (1987) (proposals concerning the selection of office space and office mates were found not to interfere with management's right to assign work).

V. Order

The Agency must upon request, or as otherwise agreed to by the parties, bargain concerning the proposal.⁽²⁾

---

---

---

FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Agency initially failed to file a statement of position in this case, and the Authority issued a decision in 36 FLRA 224 finding the proposal to be negotiable. The Agency then filed a motion for reconsideration, contending that it had been unaware of the Union's corrected petition for review because it had not been properly served with the petition. Subsequently, the Authority: (1) found that the Union had not complied with the Authority's Rules and Regulations because it failed to serve a copy of its corrected petition for review on the principal Agency bargaining representative at the negotiations; (2) granted the motion for reconsideration; (3) vacated its decision in 36 FLRA 224; and (4) reopened the case for further processing.

2. In finding the proposal to be negotiable, we make no judgment as to its merits.

---