41:1068(85)CA - - Voice of America and NFFE, Local 1418 - - 1991 FLRAdec CA - - v41 p1068

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[ v41 p1068 ]
41:1068(85)CA
The decision of the Authority follows:


41 FLRA No. 85

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

VOICE OF AMERICA

(Respondent)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1418

(Charging Party/Union)

3-CA-90614

DECISION AND ORDER

July 31, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The Respondent filed an opposition to the General Counsel's exceptions and cross-exceptions to the Judge's decision. The General Counsel filed an opposition to the Respondent's cross-exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain with the Union on two proposals the Union submitted concerning the Respondent's decision to ban all eating and drinking by unit employees in newly refurbished broadcast studios. The Judge found that because the two Union proposals were nonnegotiable, the Respondent did not violate the Statute by its refusal to bargain. Accordingly, he recommended dismissal of the complaint.

Pursuant to section 2423.29 of our 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 only to the extent consistent with this decision.

II. Background and Judge's Decision

The Union represents a unit consisting of approximately 70 radio broadcast technicians assigned to the Respondent's Washington, D.C. radio broadcasting facility. The technicians' work is performed in a broadcast studio that contains various electrical broadcasting devices. The Respondent operates its radio broadcast operation 24 hours a day, 7 days a week. A technician's assignments last from as little as 15 minutes to all-day assignments for special programs. However, assignments generally last from 30 minutes to 2 hours and 15 minutes without a break, during which time the technician is confined to the control room of the studio.

As part of a modernization program, the Respondent began to refurbish its Washington, D.C. studios in 1988. By the spring of 1989, nine of nineteen studios had been refurbished. The refurbished control rooms were refitted with "state of the art" electronic equipment. Judge's decision at 3. Warranties and literature accompanying the new equipment cautioned against exposure to dust, dirt and liquids that could damage the equipment or shorten its life-span.

On May 1, 1989, the Respondent, by letter, advised the Union that it was going to implement a policy prohibiting eating and drinking in all refurbished studios. The Respondent offered the Union the opportunity to present "bargainable proposals it believe[d would] address any impact on the bargaining unit as a result of implementation of this policy." Id. at 3-4. On May 2, the Union replied requesting negotiations on the matter and making the following proposals that are at issue in this case:(1)

2. The Agency, at its expense, will provide [the Union] with a minimum of 200, 16-ounce capacity "commuter mugs" for use by members of the bargaining unit.

3. Food consumption in workareas [sic] shall be limited to food snacks commonly supplied in food vending machines located in the [Respondent's] Washington Headquarters facility.

Id. at 4.

By letter dated May 22, 1989, the Respondent refused to bargain with the Union, contending that the new studios were equipped with state of the art equipment that is sensitive to damage from spilled liquids and food particles, as well as smoke and other pollutants. It claimed that it was exercising its right to take steps to protect that equipment. The Respondent specifically declared the Union's proposals to be nonnegotiable because they were contrary to the Respondent's prohibition against eating or drinking in the refurbished control rooms.

The General Counsel contended before the Judge that while the Respondent's ban on drinking and eating in control rooms involved the exercise of a management right, the Union's proposals constituted appropriate arrangements for employees adversely affected by the ban and therefore were negotiable.

The Respondent contended before the Judge that its ban on drinking and eating was an action involving the technology, methods, and means of performing work within the meaning of section 7106(b)(1) of the Statute and that the Union's proposals would directly interfere with its purposes in imposing the ban. The Respondent further contended that the ban constitutes a determination of its internal security practices under section 7106(a)(1) of the Statute and the Union's proposals contravene that policy. The Respondent also argued that the proposals should not be construed as appropriate arrangements within the meaning of the Statute.

The Judge found that by banning drinking and eating in the newly renovated control rooms, the Respondent was determining the technology, methods or means of performing work, within the meaning of 7106(b)(1) of the Statute. He noted that the General Counsel did not dispute the Respondent's contention that the ban was an action that involved the determination by the Respondent of the technology, methods or means of performing work and that the General Counsel had alleged that the proposals are appropriate arrangements for employees adversely affected by the Respondent's imposition of the ban.

The Judge reviewed the Authority's precedent dealing with disputes over whether proposals are appropriate arrangements under section 7106(b)(3) of the Statute, citing National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard), in which the Authority set forth its test in making such a determination. In applying the test to the portion of this case involving management's right to determine the technology, methods and means of performing work, the Judge found that a practice had developed whereby technicians were permitted to drink and eat while on duty in control rooms, that this practice benefited the technicians and was a desirable circumstance connected with their employment. The Judge concluded that the employees were adversely affected by the ban on drinking and eating in the control rooms.

The Judge found that the Union's "commuter mug" proposal sought to overcome the Respondent's concern that spilled liquids could damage the sensitive and costly electronic equipment whose continual operation is necessary for the Respondent to fulfill its mission of providing radio broadcasts on behalf of the Government. The Judge found that the mugs are virtually watertight, and if tipped, there would be little likelihood of fluid inadvertently escaping from the container and coming in contact with the electronic circuitry.

The Judge further concluded that the use of commuter mugs did not excessively interfere with the underlying purpose of banning the consumption of liquids in the control rooms. In this regard, the Judge found that the record did not disclose that spilling liquids on equipment had been a problem in the past or, in actuality, would reasonably be expected to be a problem when using commuter mugs. Further, the Judge found that additional safeguards such as leaving mugs, when not in hand, on a cart or on the floor away from the control console might be utilized to avert the opportunity for liquids to come into contact with electronic equipment. The Judge also found that the availability of liquids in control booths was not directly related to the mission of the Respondent, but only indirectly related when and if liquid comes in contact with a particularly sensitive aspect of the electronic equipment. Accordingly, the Judge concluded that the proposal for the use of commuter mugs in the control rooms was an appropriate arrangement for employees adversely affected by management's exercise of its right to determine the technology, methods or means of performing work.

With regard to the Union's proposal dealing with the consumption of food snacks in the control booths, the Judge found that this proposal merely attempts to limit the source and classification of food that might be consumed but does not address the reason for the ban. As such, the Judge found that this proposal was not an appropriate arrangement but, rather, was an effort to negate management's exercise of its rights under section 7106(b)(1) of the Statute. Accordingly, the Judge found that this proposal was not negotiable.

As to the Respondent's internal security contentions, the Judge noted that the Authority has held that an agency's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the right to determine policies and take actions to secure or safeguard its physical property and personnel against internal and external risks. The Judge further noted that the Authority has held that where a link has been established between an agency's action and its security concerns, the Authority will not review the merits of the action and will find the action to be an exercise of the agency's right under section 7106(a)(1) to determine internal security practices.

The Judge found that the Respondent's prohibition against eating and drinking in the control booths was adopted to protect electronic equipment from coming into contact with liquids and food residue that could interfere with the operation of the equipment and the broadcast of the Respondent's programs. The Judge further found that there exists a reasonable connection between that prohibition and protecting the new, sensitive, electronic equipment. The Judge then found that "[a]s I am precluded from evaluating the merits of Respondent's action of imposing a total ban on eating or drinking in control rooms in pursuing its objective of protecting its electronic equipment, I am constrained to conclude Respondent's actions herein constitute an exercise of its right under 7106(a)(1) of the Statute to determine internal security practices to protect its equipment." Id. at 10. On that basis, the Judge concluded that the Respondent was not required to negotiate with the Union on its proposals "which would lessen the extent of the measures Respondent adopted." Id. Accordingly, he recommended that the complaint should be dismissed.

III. Positions of the Parties

A. The General Counsel's Exceptions

The General Counsel does not except to the Judge's finding that the Union's proposal dealing with the consumption of food snacks is nonnegotiable. The General Counsel does except to the Judge's finding that the commuter mug proposal is nonnegotiable because it concerns management's right to determine its internal security practices. The General Counsel argues that the Judge's analysis in finding the proposal nonnegotiable was faulty.

The General Counsel asserts that the Judge's rationale for dismissal of the complaint as to the commuter mug proposal is contrary to Authority precedent and must be reversed. The General Counsel contends that the test that should be applied is "excessive interference" with the management right involved, not whether the commuter mug proposal would, as found by the Judge, "lessen the extent" of the Respondent's security measures, citing Kansas Army National Guard. Further, the General Counsel contends that with regard to the interplay between section 7106(b)(3) of the Statute and the section 7106(a)(1) right to determine internal security practices, the Judge "has misconstrued and ignored the Authority's decisions in these areas." General Counsel's Exceptions at 5. The General Counsel argues that the Authority has never held that the section 7106(a)(1) right to determine internal security practices nullifies any and all section 7106(b)(3) bargaining proposals. Rather, the General Counsel contends that proposals under section 7106(b)(3) are fully negotiable provided they do not excessively interfere with management's section 7106 rights, including the right to determine internal security.

The General Counsel argues that the record demonstrates, and the Judge found, that the commuter mug proposal is a negotiable appropriate arrangement under the Kansas Army National Guard test. Therefore, the General Counsel argues that the Respondent's refusal to negotiate over this proposal violated the Statute.

B. The Respondent's Opposition and Cross-Exceptions

The Respondent maintains that the Judge applied the correct test in concluding that the Union's proposal is nonnegotiable under section 7106(a)(1) because it would "lessen the extent" of security measures adopted by the Respondent. In the alternative, the Respondent excepts to the Judge's conclusion that the commuter mug proposal is an appropriate arrangement with regard to management's right to determine the technology, methods and means of performing work. The Respondent argues in this regard that the proposal cannot be an appropriate arrangement because it sought to nullify a policy before it was implemented. Further, the Respondent argues that the proposal: (1) directly interferes with the method or means of work under section 7106(b)(1); (2) is in response to a policy that does not adversely affect unit employees; and (3) creates a disproportionately negative impact on management's rights.

In its opposition to the General Counsel's exceptions, the Respondent contends that the Judge correctly concluded that: (1) management's policy was adopted to protect its state of the art electronic broadcasting equipment from damage caused by food and liquid that could interfere with the operations of the equipment and the Respondent's broadcast ability; (2) there was a reasonable connection between the policy and the protection of the Respondent's equipment; and (3) the proposal of providing commuter mugs to unit employees would lessen the extent of the measures Respondent adopted. The Respondent also argues that the Judge was correct in relying on Authority precedent that where a link is established between an agency's action and its expressed security concerns, the Authority will not review the merits of those actions.

Although the Respondent contends that the Judge should have "rejected any notion that these proposals could be characterized as appropriate arrangements[,]" the Respondent contends that the Judge correctly concluded that the proposals were not negotiable. Respondent's Opposition and Cross-exceptions at 5.

With regard to its exception that the Judge was in error in finding the commuter mug proposal to be an appropriate arrangement for employees adversely affected by management's policy regarding a method or means of performing work, the Respondent first disputes the Judge's acceptance, "without a reasoned decision," of the General Counsel's characterization that the commuter mug proposal is not substantive. Id. at 7. The Respondent contends that a proposal for eating and drinking in studios is a substantive response to a policy banning eating and drinking in studios. The Respondent argues that the Union's proposals sought to change that policy before it was implemented in such a way as to nullify the policy. Accordingly, the Respondent asserts that as the employees could not have been adversely affected by the exercise of management rights before any action had been taken, the Judge incorrectly found the commuter mug proposal to be an appropriate arrangement.

Secondly, the Respondent contends that the Judge incorrectly concluded that the employees were adversely affected merely because the policy withdrew the practice of eating and drinking in the studios. The Respondent claims that the Union never met its threshold burden for the excessive interference test established for appropriate arrangements in Kansas Army National Guard because the Union had not shown how the employees were adversely affected by management's exercise of its right to determine the method or means of performing work. The Respondent argues that the best the General Counsel can argue is that "consumption of fluids is a basic human need and desire[,]" citing the General Counsel's exceptions at 4.

Next, the Respondent contends that its policy does not apply merely to bringing liquids into the studio and holding them there, but also bans drinking in the studio. It argues that in order to drink the liquid in the mug, one must get the liquid out of the mug and that "[n]o one has yet invented a watertight mouth or employees who will not cough, sneeze, or laugh with a mouthful of liquid." Respondent's Opposition and Cross-exceptions at 9. The Respondent also disputes the Judge's finding that the record did not disclose that spilled liquids on electronic equipment was not a problem in the past and his assumption that spilled liquids would not be a problem in the future. With regard to the Judge's statement concerning such additional safeguards as leaving the mugs on a cart, the Respondent claims that the Judge is attempting to "negotiate the [U]nion's proposal, which did not specify carts or any other 'safeguards,' let alone a way to enforce such a provision or even to ensure that the 'commuter mugs' would maintain their spill-proof specifications over time." Id. at 10.

Finally, the Respondent contends that the Judge failed to apply correctly the balancing test required by Kansas Army National Guard. The Respondent disagrees with the Judge's conclusion that liquids in the studios are only indirectly related to the Respondent's mission if they happen to come in contact with the sensitive equipment. In this regard, the Respondent contends that such a conclusion completely ignores the requirement to weigh the competing practical needs of employees and managers as set forth in Kansas Army National Guard. The Respondent argues that the Union showed no practical need for employees to have liquid available during a 1 or 2-hour studio assignment. On the other hand, the Respondent contends that the record is replete with evidence that shows the effect of one small spill. The Respondent argues that while liquid spills might not be expected to occur with great frequency, just one spill could incapacitate the studio equipment, causing thousands of dollars of damage to equipment, invalidating the warranties and knocking the Respondent's broadcast off the air. Accordingly, the Respondent contends that because the Union's proposal interferes excessively with its rights under sections 7106(a)(1) and 7106(b)(1) of the Statute, it does not meet the test of an appropriate arrangement.

C. The General Counsel's Opposition to the Respondent's Cross-Exceptions

The General Counsel contends that the Respondent's contention that there was no showing that its ban on drinking in the refurbished studios adversely affected unit employees totally ignores the record evidence and the findings of the Judge. The General Counsel argues that the Judge correctly determined that the commuter mug proposal was an arrangement under section 7106(b)(3) of the Statute. Further, with regard to the second prong of the appropriate arrangement test, the General Counsel contends, contrary to the Respondent's claims, that the proposal does not interfere excessively with the Respondent's management rights. In this regard, the General Counsel disagrees with the Respondent's arguments that the excessive interference test has been met because of the Respondent's concerns over exposing its equipment to an accidental liquid spill. The General Counsel contends that the Respondent's arguments are misplaced because the mugs are virtually watertight and, further, that the Respondent did not establish the extent of risk, if any, to its equipment posed by the use of the mugs. The General Counsel contends that in balancing the respective interests of management and employees, the Union's commuter mug proposal does not excessively interfere with management's rights. Rather, the General Counsel argues that the commuter mug proposal seeks to afford unit employees a significant benefit, while having only a limited impact on management's prerogatives.

IV. Analysis and Conclusions

For the following reasons, we agree with the Judge's conclusion that the Union's commuter mug proposal is nonnegotiable and that the complaint should be dismissed in its entirety.(2) In contrast to the Judge, however, we find that the proposal excessively interferes with the exercise of management's rights under both sections 7106(a)(1) and 7106(b)(1) of the Statute.

There are no exceptions to the Judge's finding that the Union's commuter mug proposal directly interferes with the Respondent's right to determine the technology, methods or means of performing work. Similarly, no exceptions have been taken to the Judge's finding that the proposal directly interferes with the Respondent's right to determine its internal security practices under section 7106(a)(1) of the Statute, which includes the right to take actions which are part of its plan to secure or safeguard its physical property. See, for example, American Federation of Government Employees, AFL-CIO, Local 1411 and Department of the Army, Fort Benjamin Harrison, 32 FLRA 990 (1988) and National Federation of Federal Employees, Local 15 and U.S. Army Armament, Munitions and Chemical Command, Rock Island Arsenal, Rock Island, Illinois, 30 FLRA 472 (1987). Therefore, we adopt the Judge's findings in this regard.

We agree with the Judge that in determining the negotiability of a proposal that arguably interferes with an agency's right to determine its internal security practices, the Authority will not inquire into the extent of the measures employed to achieve the objective as long as they reasonably relate to the purpose for which the particular security plan or practice is adopted. See, for example, 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 mem. sub nom. American Federation of Government Employees Council 214 v. FLRA, 865 F.2d 1329 (D.C. Cir. 1988). However, we disagree with the Judge's conclusion that no further analysis is appropriate even though an argument has been raised that the proposal constitutes an appropriate arrangement under section 7106(b)(3). See, for example, National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618 (1990) (after finding that certain proposals directly interfered with management's right under section 7106(a)(1) to determine its internal security practices, the Authority further determined whether such proposals constituted appropriate arrangements under section 7106(b)(3)).

In determining whether a proposal is an appropriate arrangement for adversely affected employees that is negotiable under section 7106(b)(3) of the Statute,(3) the Authority first determines whether the proposal is intended to be an arrangement for employees adversely affected by management's exercise of a reserved right. Once the proposal is determined to be an arrangement, the Authority determines whether the proposed arrangement is appropriate, or whether it is inappropriate because, applying the test set forth in Kansas Army National Guard, it excessively interferes with management's rights.

The Judge found that a practice had developed whereby technicians had been permitted to drink and eat while on duty in control rooms and that this practice provided an employment-related benefit to the technicians, some of whom were required to work for 2 hours and 15 minutes without a break. The Judge further found that the employees were adversely affected by the Respondent's withdrawal of that benefit when it implemented a total ban on drinking in the control rooms. We agree. The Union's commuter mug proposal was intended to address the Respondent's concerns for protecting its equipment while still permitting the practice of allowing unit employees to drink in their work areas. We conclude, therefore, that the proposal constitutes an arrangement within the meaning of section 7106(b)(3).

We now consider whether the proposal is appropriate. In Kansas Army National Guard, 21 FLRA at 31-33, the Authority set forth several illustrative factors that it would consider in determining whether a proposed arrangement is appropriate or whether it is inappropriate because it excessively interferes with management's rights.

On the one hand, allowing the use of commuter mugs in the broadcast studio would benefit employees by permitting them to drink during work assignments. Generally, work assignments last from 30 minutes to 2 hours and 15 minutes, but they can last all day, during which the employee is confined to the control room of the studio.

On the other hand, however, the Respondent instituted its prohibition against drinking in its newly refurbished studios in order to protect its state of the art equipment from damage caused by contact with liquids. The modernization program of its facilities when finished will cost $6.6 million. Transcript at 90. With regard to the control consoles' modules, the Respondent's project manager for broadcast operations testified that "even a minute drop of water or anything else could effect [sic] the mission of the agency . . . by incapacitating the equipment itself so that you could not broadcast and could put the console off the air immediately." Id. at 91. He testified that one drop of liquid crossing any one of two points on an electronic circuit could fuse that circuit and thus, disable the entire module. The operations project manager further testified that it would take "at least ten minutes if not longer" for maintenance personnel to replace the module. Id. at 101. The operations project manager also noted that each one of these modules generally runs between $500 and $700. The cost of a tape machine is about $7,000 to $8,000. Id. at 102. As with the control consoles' modules, the tape machines, as well as other electronic equipment in the studios, are at risk if they come in contact with liquids. The Respondent also expressed a concern that the warranties on the electronic equipment would be invalidated by the manufacturers if liquid came in contact with the electronic equipment, especially liquids containing sugar, which it emphasized is particularly harmful to electronic components. None of these claims were disputed by the Union or the General Counsel.

The Respondent also contends that it provides adequate facilities near the broadcast studios, such as a lunch room and vending machines, that the employees can use during their breaks. It further asserts that an arrangement such as suggested by the Judge, that would permit drinking from the commuter mugs placed away from the control consoles, for example, on a cart, would be hard to enforce. Further, in this regard, the operations project manager testified that for live air shows, which constitute about 60 percent of all assignments, technicians need to remain at the controls during the entire session and during recording sessions the technicians need to remain in the immediate work area. Id. at 131-32. Based upon the foregoing, we conclude that the burdens on management of allowing any drinking in the refurbished control rooms are substantial.

On balance, we conclude that the benefit to the employees of providing commuter mugs in order to permit them to drink in the studios does not outweigh the negative effect on management's right to protect its electronic equipment from damage. In this regard, although the Union's commuter mug proposal attempts to minimize the chances that liquid would come in contact with the electronic equipment, it does not provide an absolute guarantee against the concerns raised by the Respondent. Even a small amount of liquid could disrupt the Respondent's broadcast mission, cause expensive repair or replacement cost, or possibly invalidate the manufacturer's warranties. Although the employees might experience some discomfort during long assignments if they could not drink in the control rooms, the evidence shows that employees normally get regular 15-minute breaks between assignments and a regularly scheduled lunch break; and there are vending machines and a lunchroom available to employees close to the studios and a cafeteria located in the building. In addition, the record shows that arrangements can be made for breaks during special assignments, id. at 128, and the Respondent has a procedure for emergency relief in which a supervisor or another technician will provide relief to a technician, id. at 36, 109. The record also shows that long assignments of four hours would be "exceedingly unusual," occurring possibly only in bad weather when the regular complement of employees cannot get to work. Id. at 128.

Consequently, we find that the Union's commuter mug proposal excessively interferes with the Respondent's management rights to determine its internal security practices under section 7106(a)(1) of the Statute and to determine the technology, methods and means of performing work under section 7106(b)(1) of the Statute.

Having found that the Respondent was not obligated to negotiate with the Union concerning the Union's proposals, we find that the Respondent has not violated section 7116(a)(1) and (5) of the Statute as alleged.

V. Order

The complaint is dismissed.




FOOTNOTES:
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1. The Union also made one other proposal, which it subsequently withdrew.

2. In the absence of exceptions regarding Proposal 3, we adopt the Judge's dismissal of that portion of the complaint.

3. The issue of whether the proposal constitutes an appropriate arrangement for employees adversely affected by the exercise of management's rights to determine either its internal security or its technology, methods or means of performing work involves a similar analysis: the benefits to the employees as balanced against the impact on management's rights. Therefore, our analysis of the proposal under 7106(b)(3) is meant to apply equally to management's rights under both section 7106(a)(1) and 7106(b)(1).