40:0831(65)NG - - AFGE, Local 644 and DOL, Occupational Safety and Health Administration, Norfolk, Virginia - - 1991 FLRAdec NG - - v40 p831



[ v40 p831 ]
40:0831(65)NG
The decision of the Authority follows:


40 FLRA No. 65

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 644

(Union)

and

U.S. DEPARTMENT OF LABOR

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

NORFOLK, VIRGINIA

(Agency)

0-NG-1854

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

May 6, 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). The appeal concerns the negotiability of two subsections of a proposal relating to the Agency's implementation of a policy providing for the mandatory use of electronic paging devices (beepers) by bargaining unit employees. For the following reasons, we find that the disputed portions of the Union's proposal are nonnegotiable. Accordingly, we will dismiss the petition for review.

II. Proposal

. . . .

2. The use of beepers will be on a voluntary basis only.

3. If the employee chooses to utilize the paging device, the requirement for calling in, unless paged, will be removed.

III. Positions of the Parties

A. The Agency

The Agency contends that subsections 2 and 3 are nonnegotiable because they directly interfere with management's right to determine the technology, methods, and means used in performing the Agency's work under section 7106(b)(1) of the Statute. The Agency also argues that subsections 2 and 3 directly interfere with management's rights to direct employees, assign work, and determine the Agency's internal security practices under section 7106(a) of the Statute. The Agency also asserts that the subsections do not constitute negotiable procedures under section 7106(b)(2) of the Statute.

Regarding its first contention, the Agency states that it is "implementing the mandatory use of electronic paging devices (beepers) by compliance staff to further [its] response to situations" that require the Agency's presence. Agency's Statement of Position at 2. The Agency explains that management must communicate with its compliance staff when they are in field locations for the purpose of communicating work instructions, information, and emergency assignments. The Agency argues that the use of beepers will greatly facilitate the communication process because, "[i]n the past, management had to wait for the employee to make telephone contact or management had to contact the compliance officer by utilizing the employer's work site telephone." Id. According to the Agency, the use of a call-in procedure created delays in communications between management and the compliance staff and the Agency determined that beepers would "be an asset in furthering the performance of the Agency's mission[,]" by enhancing the Agency's response time. Id.

The Agency argues that the Union's proposal, which attempts to make the use of beepers voluntary, is negotiable only at the election of the Agency and the Agency has elected not to bargain. In this regard, the Agency argues that the decision to use beepers involves the technology, methods and means of performing work.

The Agency also contends that the subsections directly interfere with management's rights to direct employees, to assign work, and to determine internal security practices by limiting the manner in which the Agency may monitor employee conduct or performance.

Finally, the Agency asserts that the subsections in dispute do not constitute negotiable procedures under section 7106(b)(2) of the Statute because they would "excessively interfere" with the exercise of its reserved management rights and, in certain circumstances, "prevent management from acting at all." Id. at 3.

B. The Union

The Union contends that the subsections in dispute are negotiable because the "adverse impact of the utilization of the beepers [is] bargainable." Petition for Review at 1. The Union adds that it is not arguing that management cannot use beepers, but that the Agency has not demonstrated a compelling need for the use of beepers only during the employees' 8-hour day shift. The Union argues that one of the purported uses of beepers is to enable employees to respond to emergencies even though those emergencies can occur during the other 16 hours of the day. The Union also argues that if there were a need to immediately contact employees for emergencies, the Agency would not have limited the use of beepers only to the bargaining unit employees at the Norfolk office involved herein, and to one other office in Baltimore. The Union also states that, notwithstanding the use of beepers, employees are still required to call in to their supervisors twice daily.

The Union contends that the subsections in dispute have no bearing on the Agency's internal security but, rather, involve "a way to contact employees in the field[.]" Id. at 2. Moreover, the Union asserts that the subsections do not concern the technology of work but merely relate to a "means to monitor an employee." Id. The Union also contends that the Agency elected to bargain concerning the use of beepers, as evidenced by the fact that the Agency only declared the subsections nonnegotiable after management gave its counterproposals to the Union, and also because management negotiated over other proposals that are not here in dispute. Finally, the Union contends that the use of beepers "is bargainable and does not infringe upon management[']s rights under 7106(b)(1) in any way." Id. at 3.

IV. Analysis and Conclusions

We find that the subsections in dispute are outside the duty to bargain because they directly interfere with the Agency's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute.(*) Additionally, the subsections constitute neither negotiable procedures nor appropriate arrangements under sections 7106(b)(2) and 7106(b)(3) of the Statute.

Subsection 2 of the proposal would make the use of beepers voluntary. If an employee chooses to use a beeper, subsection 3 would eliminate the requirement that the employee call in, unless the employee was responding to a page.

The Authority employs a two-part test to determine whether a proposal directly interferes with the methods and means of performing work. National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 406-07 (1990) (Internal Revenue Service). 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. Id. at 406. Second, the agency must show that the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. Id. As relevant to this case, the Authority has construed "means" as referring 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. Id. at 407. The term "performing work" is intended to include those matters that directly and integrally relate to the agency's operations as a whole. Id. Additionally, for purposes of section 7106(b)(1), the means employed need not be indispensable to the accomplishment of an agency's mission. Rather, and as interpreted in various court decisions, the means 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.'" Id. at 407-08.

Here, the Agency has established that there is a direct and integral relationship between the use of beepers and the accomplishment of the Agency's mission. In this regard, it is uncontroverted that the current procedure of maintaining telephone contact with employees in field locations has caused delays in communicating with these employees. The Agency has determined that in order to enhance response time to emergency situations, work assignments, and to provide other information, the use of beepers would be effective in furthering the Agency's mission. Clearly, the ability to respond more expeditiously to emergency and other assignments is directly linked to the compliance functions performed by the employees, which in turn, serves to promote the accomplishment of the Agency's mission.

With regard to enhanced response to emergency situations, the Union asserts that the Agency has made mandatory the use of beepers only during the employees' 8 hours of duty time, that emergencies can occur during other times of the day, and that "management can not rationalize compelling need for only 1/3 of the time." Petition for Review at 2. We interpret the Union's argument as questioning the credibility of the Agency's decision to have unit employees use beepers only during their duty hours in light of the fact that emergencies can occur at any time of day. Assuming that only unit employees would respond to emergency situations and only during their working hours, the fact that emergencies can occur at times outside the employees' duty hours does not compel a conclusion that beepers are not a means of performing work. Moreover, in determining whether an instrumentality constitutes a "means" within the meaning of section 7106(b)(1), an agency is not obligated to establish a "compelling need" for the instrumentality. Instead, the means "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.'" Internal Revenue Service at 407.

Having found that there is a direct and integral relationship between the use of beepers and the accomplishment of the Agency's mission, we also find that the Agency has established that subsections 2 and 3 would directly interfere with the Agency's mission. As noted, subsection 2 would make the use of beepers voluntary, while subsection 3 would eliminate the requirement of calling in, other than responding to a page, for those employees who elect to use a beeper. Insofar as the Agency has determined that beepers will enhance its response time and, thereby, further the performance of the Agency's mission, allowing employees the option of using a beeper by making such use voluntary, which is the basis of both of these subsections, directly interferes with the purpose for which beepers were adopted.

Consequently, subsections 2 and 3 directly interfere with the Agency's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute.

In reaching this conclusion, we reject the Union's contention that the Agency elected to bargain over these matters by offering counterproposals and negotiating over other proposals concerning the use of beepers. We find nothing in the record that establishes the Agency elected to bargain over the langauge of the subsections that are before us. Instead, as the Union notes, the Agency "eliminated union proposals # 2 & 3 and stated that they were non-negotiable." Petition for Review at 1. Therefore, neither the Agency's offer of counterproposals nor its negotiations as to other proposals concerning the use of beepers warrants a finding that the Agency elected to bargain over the particular matters here in dispute.

We also find that this case is distinguishable from American Federation of Government Employees, Council of Marine Corps Locals (C-240) and U.S. Department of the Navy, United States Marine Corps, Washington, D.C., 39 FLRA 773 (1991) (Marine Corps Locals), petition for review filed sub nom. U.S. Department of the Navy, U.S. Marine Corps, Washington, D.C. v. FLRA, No. 91-1182 (D.C. Cir. April 18, 1991). In that case, we found negotiable a proposal that would prevent the agency from requiring employees to wear and respond to beepers unless they were in a pay status. Significantly, we found that nothing in the proposal would prohibit the agency from requiring employees to carry and respond to beepers. Id. at 780. We also addressed and rejected the agency's argument that the proposal would interfere with management's right to determine the technology, methods, and means of performing work. We stated that "[e]ven assuming that the requirement to carry and respond to a beeper bears a technological relationship to accomplishing or furthering the performance of the [a]gency's work" the proposal was concerned only with the pay status of employees who were required to carry beepers. Id. at 781-82. By contrast, the matters here in dispute do not pertain to the employees' pay status but, rather, to whether employees will be required to use beepers in the first instance. Moreover, contrary to the proposal in Marine Corps Locals, the subsections of the proposal at issue in this case permit the use of beepers only on a voluntary basis, which directly interferes with the exercise of management's rights under section 7106(b)(1) of the Statute.

The Authority has held that proposals that directly interfere with the exercise of a management right do not constitute negotiable procedures under section 7106(b)(2) of the Statute. See National Association of Government Employees, Local R12-33 and U.S. Department of the Navy, Pacific Missile Test Center, Point Mugu, California, 40 FLRA No. 45, slip op. at 9 (1991); American Federation of Government Employees, Council 214 and Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 34 FLRA 977, 984 (1990). To the extent that the matters proposed to be bargained here directly interfere with the exercise of a management right, they do not constitute negotiable procedures.

Finally, we find that subsections 2 and 3 do not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Although the Union did not clearly articulate an assertion that these subsections were intended to be an appropriate arrangement for employees adversely affected by the exercise of a management right, we will construe the Union's petition for review to contain such an assertion for two reasons. First, in its petition, the Union argues that subsections 2 and 3 are negotiable because of the "adverse impact of the utilization of the beepers . . . ." Petition for Review at 1. Second, in its declaration of nonnegotiability, the Agency took the position that subsections 2 and 3 are not appropriate arrangements because they would directly interfere with the exercise of various management rights and that "the detriment to management's exercise of its reserved rights outweighs any benefits the employee would receive." Petition for Review, Exhibit E.

We find, however, that subsections 2 and 3 do not constitute appropriate arrangements. To determine whether a proposal constitutes an appropriate arrangement under section 7106(b)(3), it is necessary to determine whether it is: (1) intended to be an arrangement for employees adversely affected by the exercise of a management right; and (2) appropriate because it does not excessively interfere with the exercise of management's right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986).

Assuming that subsections 2 and 3 were intended to be an arrangement, by virtue of the Union's statement that the matters are bargainable because of the "adverse impact" of the use of beepers, we nonetheless find that the arrangement is not appropriate within the meaning of section 7106(b)(3). By making the use of beepers voluntary, at the sole option of the employee, the subsections would prevent the Agency from requiring their use, even when the Agency has determined that the use of beepers will enable employees to respond quickly to emergencies and other situations requiring immediate action. The impact on the Agency's ability to perform its mission would, thereby, be seriously impaired. In contrast, the benefits to the employees of being able to choose not to carry a beep