41:1195(93)NG - - NTEU and Nuclear Regulatory Commission, Region V, Walnut Creek, CA - - 1991 FLRAdec NG - - v41 p1195
[ v41 p1195 ]
The decision of the Authority follows:
41 FLRA No. 93
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of a proposal pertaining to the selection of employees' offices following renovation of the Agency's office space. For the reasons stated below, we find that the proposal is negotiable.
II. The Proposal
Bargaining unit employee office space shall be selected according to seniority as defined by grade, then service computation date. Selections as to specific office space will be by floor, except when such selection clearly conflicts with the assignment of work. [Only the underscored portion is in dispute.]
III. Positions of the Parties
A. The Agency
The Agency contends that the portion of the proposal allowing for selection by floor interferes with management's rights to determine the organization of the Agency under section 7106(a)(1) of the Statute, and the methods and means of performing work under section 7106(b)(1) of the Statute. The Agency explains that the proposal would allow bargaining unit employees to select where they wish to be located on a particular floor, which essentially would constitute selection by division. The Agency states that the Region is comprised of three divisions, each of which occupies a full floor. The Agency notes that within the three divisions there are, respectively, 2 branches consisting of 43 employees, 3 branches consisting of 31 employees, and 2 branches consisting of 18 employees. The Agency argues that there is a need to have employees located together within branches, rather than divisions, and that therefore employees should be able to select their workstations only from within the space designated for a particular branch. The Agency states that having employees within each of its branches located together contributes to the accomplishment of the Agency's mission "to protect the public health and safety." Agency's Statement of Position at 4.
Specifically, the Agency argues that locating employees by branch is important to the Region because it: (1) enhances supervisory communications and control and communication between technical and administrative support staff within each branch; (2) allows for employees to function more effectively; (3) leads to an efficient and effective "extension of the functions of the organization "; (4) enhances effective management, control, and efficiency, to the extent that divisions are organized into branches, because, among other things, branches perform different functions; (5) facilitates better information exchange among employees and communication during emergencies; and (6) enhances office coverage when technical employees are out of the office on travel, which averages one week out of three. Id.
With respect to its argument that the proposal interferes with the right to determine its organization, the Agency argues that its determination to locate employees by branch is an exercise of its statutory right to organize and that there is a "direct and substantive relationship between a branch's work and the location of its employees." Id. at 7. In support, the Agency relies on National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398 (1990) (Treasury, IRS); National Treasury Employees Union, Atlanta, Georgia and U.S. Department of the Treasury, Internal Revenue Service, Jacksonville District, 32 FLRA 886 (1988) (Treasury, Jacksonville); National Treasury Employees Union, Chapter 55 and Internal Revenue Service, Columbia District, Columbia, South Carolina, 15 FLRA 820 (1984) (IRS, Columbia); American Federation of Government Employees, AFL-CIO, Local 3805 and Federal Home Loan Bank Board, Boston District Office, 5 FLRA 693 (1981) (Bank Board, Boston); and Congressional Research Employees Association and the Library of Congress, 3 FLRA 736 (1980) (Library).
As to the Agency's argument that the proposal interferes with its right to determine the methods and means of performing work, the Agency argues that the grouping of employees by branch is functional. The Agency maintains that such functional grouping facilitates the accomplishment of the branches' work and, therefore, the Agency's work. The Agency argues that the proposal would "take away the [A]gency's ability to determine the functional grouping necessary to carry out its mission." Agency's Statement of Position at 8. In support, the Agency relies on Treasury, IRS, 35 FLRA at 408.
B. The Union
The Union states that the purpose of the proposal is to continue the present seating arrangement and to allow employees to select where, on the particular floor to which their division has been assigned, they will sit. The Union adds that the proposal would allow employees with seniority to have priority in selecting the more desirable offices. The Union further states that the proposal would apply to office selection only on two of the three floors occupied by the divisions (the third and fourth floors). The Union adds that the proposal would not apply to office selection on the second floor as the Union "understood the Agency's need for seating these employees by branch." Response at 6.
The Union contends that the proposal would not interfere with management's rights to determine its organization because the proposal would not alter the way in which the Agency is organized or affect the Agency's administrative or functional structure. The Union states, in this regard, that the Agency would still be organized by divisions, with each division divided into branches. The Union states that the proposal simply concerns a work area or floor within a building on which employees will work, and that this does not constitute the designation of an official duty station.
In response to the Agency's assertion that the proposal interferes with management's right to determine the methods and means of performing work, the Union argues that the Agency has not established that there exists a direct and integral relationship between seating employees by branch and the accomplishment of the Agency's mission. Moreover, the Union asserts that the Agency has not demonstrated how the Union's proposal to seat employees by division would directly interfere with the mission-related purpose for which seating employees by branch was adopted.
The Union also argues that the Agency failed to substantiate its claims concerning the six areas that would be affected by the proposal. More specifically, the Union argues that supervisory communications and control would not be affected by the proposal because almost all of the employees working on the third and fourth floors are inspectors who work independently and travel frequently, and who see their supervisors only two or three times per week. In terms of communication between the technical and administrative support staff, the Union states that branch secretaries do not answer the phones of technical employees, relay messages or deliver mail. Rather, all employees have "Voice Mail Boxes" that allow them to receive their phone calls directly or via recorded messages.(1) Mail is delivered to a central mail box on each floor, with employees responsible for picking up their own mail. The Union also states that there is a centralized typing pool, which is located in one general area and which serves the entire regional office. The Union notes that at least one branch secretary works at the opposite end of the floor from the branch chief. The Union argues that as that arrangement has not interfered with the method and means of performing work, neither would an arrangement that would allow employees to be located physically apart from their particular branch secretary.
The Union further argues that the proposal would not affect the management, control and efficiency of performance because the proposal would not affect or change the Agency's supervisory structure. In terms of information exchange among branch employees, the Union states that as the floor dimensions measure 70 feet by 140 feet, employees would simply have to walk a few extra seconds to reach another employee's office. The Union adds that due to travel requirements, employees are rarely in the office at the same time. Communication during emergencies would be unaffected by the proposal because the Agency has established an Incident Response Center to which employees report for the necessary communication.
Finally, the Union argues that the proposal would not affect office coverage when employees are on travel status inasmuch as there is no coverage for employees at such times. The Union asserts that the Agency does not have any mechanism in place to receive phone messages or mail for employees who are on travel status but, rather, employees utilize the Voice Mail Box system to obtain their messages.
IV. Analysis and Conclusions
We conclude that the proposal is negotiable. Initially, we note that the only issue in dispute concerns the portion of the proposal allowing for office selection by floor. The record indicates that the parties are in agreement as to the use of seniority, as defined by the proposal, for office selection. Agency's Statement of Position, Attachment 4. With regard to the disputed portion of the proposal, we find that it does not directly interfere with management's rights to determine its organization under section 7106(a)(1) of the Statute or the methods and means of performing work under section 7106(b)(1) of the Statute.
A. The Right to Determine the Organization of the Agency
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. Treasury, IRS, 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 each case. Treasury, IRS, 35 FLRA at 412. The Authority previously has found that 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. See id. at 409-13; American Federation of Government Employees, Local 3601 and U.S. Department of Health and Human Services, Public Health Service, Indian Hospital, Claremore, Oklahoma, 39 FLRA 504 (1991) (HHS, Claremore). As we stated in HHS, Claremore, Authority precedent does not support the broad 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. Id. at 515. 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. Id., citing Treasury, IRS.
Therefore, to come within the scope of the right to determine the organization of an agency, the Agency must establish that the "duty station" of employees, that is, where they are physically located, has 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 to allow employees to select their workstations only from within the floor area designated for a given branch meets this requirement.
We note the Agency's statements that it has determined to locate its employees by branches and that there is a "direct and substantive relationship between a branch's work and the location of its employees." Agency's Statement of Position at 7. However, we also note the Union's arguments that the proposal does not involve an official duty station but, rather, a work area or floor within a building, and does not alter the Agency's organization by divisions, with each division divided into branches. Response at 2-3.
Unlike the cases cited by the Agency, the proposal in this case would not prevent the Agency from reassigning functions from one organizational unit to another and changing the building in which the work of those functions would be performed (Treasury, Jacksonville); prevent the Agency from closing or consolidating certain duty stations (IRS, Columbia); require the Agency to maintain duty stations in certain cities (Bank Board, Boston); or determine how the Agency will be divided into organizational entities (Library). The proposal would simply allow employees on two of the three floors occupied by divisions to choose their office space by floor, rather than by branch. Although the Agency states that locating employees by branch on each floor contributes to the accomplishment of the Agency's mission, and the Agency specifies various reasons in support of its position, those assertions relate more to the Agency's argument that the proposal interferes with the methods and means of performing work, which we will address below. Such arguments do not establish that the choice of location constitutes an exercise of the Agency's right to determine its organization under section 7106(a)(1) of the Statute. We note, moreover, as to the Agency's statement that organizing employees by division enhances effective management, control and efficiency, that the proposal does not affect the Agency's decision to segment its operations into divisions and branches. The Union clearly states that the proposal is not intended to affect the Agency's determination to maintain that particular organizational structure and there is nothing in the proposal to establish otherwise.
Accordingly, we conclude that the Agency has not established that its determination to allow employees to select their workstations only from within the floor area designated for a given branch has a direct and substantive relationship to the Agency's administrative and functional structure. Therefore, we find that the proposal does not directly interfere with the Agency's right to determine its organization. See HHS, Claremore, 39 FLRA at 516 (agency did not establish that its determination not to provide a private office for a medical staff quality assurance employee had a direct and substantive relationship to its administrative and functional structure); Treasury, IRS, 35 FLRA at 413 (agency did not establish that the determination of where the Taxpayer Service Division is located within its office building had a direct and substantive relationship to its administrative or functional structure).
B. The Right to Determine the Methods and Means of Performing Work
The Authority employs a two-part test to determine whether a proposal interferes with management's right to determine the methods and means of performing work. 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. Second, the agency must show that the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. Treasury, IRS at 406.
The Authority has construed "method" as referring to the way in which an agency performs its work. Id. "Means" refers to any instrumentality, including an agent, tool, device, measure, plan or policy used by an agency for accomplishing or furthering 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.
The relative importance of a particular "means" of performing work is irrelevant to a determination of whether a proposal interferes with the right to determine the methods and means of performing work. The means employed need not be indispensable to the accomplishment of an agency's mission. Rather, 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 (citations omitted). Establishing a "functional grouping" of employees constitutes the methods and means of performing work under section 7106(b)(1) where it is shown that the performance of an agency's work is facilitated by the ability to group employees based on the functions which they perform. Id. at 408.
The Agency argues that "nothing could be more functional than the grouping of the employees by branch . . . . The key is that the functional grouping facilitates the accomplishment of the branch's, and therefore the agency's work. The union's proposal would take away the agency's ability to determine the functional grouping necessary to carry out its mission." Agency's Statement of Position at 8 (emphasis in original). The Agency contends that locating employees by branch is important because it would enhance supervisory and intra-branch communications and information exchange, and lead to greater supervisory control, organizational efficiency and employee effectiveness.
The Union, on the other hand, refutes the Agency's stated reasons for seating employees by branch. The Union essentially argues that supervisory and intra-branch communication would be unaffected by the proposal inasmuch as employees work independently, travel frequently and, therefore, see their supervisors infrequently. The Union adds that employees pick up their own mail and receive phone messages with little interaction with the administrative support staff. The Union also asserts that effective communications would not be impaired because the dimensions of the floors on which employees work measure 70 feet by 140 feet, thus placing all offices within a short distance of one another. As to the other reasons advanced by the Agency in support of its seating arrangement, the Union states that the management, control and efficiency of the Agency would not be affected because the intent of the proposal is not to change the Agency's current organizational structure.
We find that the Agency has not established that there is a direct relationship between locating employees by branch and the accomplishment of the Agency's mission. Initially, we stress that nothing in the proposal would prevent the Agency from organizing employees by branch. The proposal is concerned basically with seating assignments, by allowing office selection on a floor, rather than a branch, basis. In U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 36 FLRA 655 (1990), the Authority found that a change in employees' seating assignments gave rise to a bargaining obligation. In reaching that result, we noted that the location at which employees perform their duties, as one aspect of an employee's office environment, concerns a matter "at the very heart of the traditional meaning of 'conditions of employment.'" Id. at 668, quoting Library of Congress v. FLRA, 699 F.2d 1280, 1286 (D.C. Cir. 1983). The Authority also has found negotiable proposals relating basically to seating assignment in other contexts. See, for example, National Treasury Employees Union and Department of Health and Human Services, Family Support Administration, 28 FLRA 1108 (1987) (proposal allowing for office selection by seniority negotiable as proposal would be implemented within program arrangement selected by agency); HHS, Claremore, 39 FLRA at 512-14 (proposal to provide a private office for a certain employee was found to be negotiable because agency did not show that there was a direct relationship between having the employee located with the rest of the employees in the department and the accomplishment of the agency's work).
Here, the Agency has not established that the manner in which employees perform their work necessitates office selection on a branch basis in order to accomplish the Agency's mission. In this connection, the Agency has not described the nature of the employees' duties or the work of the branches so as to support a finding that a direct and integral relationship exists between office selection by branch and the performance of the Agency's mission "to protect the public health and safety." Agency's Statement of Position at 4. Moreover, as noted above, the proposal would not prevent the Agency from accomplishing its work by organizing its employees by either branch or division.
We find unpersuasive the Agency's assertion that office selection by branch would enhance supervisory control and communications. In HHS, Claremore, based on the record before it, the Authority found that grouping employees together for the convenience of the supervisor and its effect on supervisory control did not constitute a functional grouping of employees so as to constitute a method or means of performing work under section 7106(b)(1). We reach the same result here. In this regard, the record reveals that office selection would be made from the floor on which the employees' respective branches are located and that, at most, a supervisor would have to walk a slightly greater distance to meet with an employee than if that employee were located in closer proximity to the supervisor. Similarly, at most, employees would have only slightly greater distances to walk, on the same floor, to meet with other branch employees. Further, we find that as employees are in a travel status approximately 33 percent of the time, the need for close proximity in order to maintain supervisory control and communication is somewhat diminished. With regard to the Agency's additional contentions, we conclude that, in the circumstances described by the parties, minimal changes in the physical location of employees would not have a sufficient effect on the Agency's organizational efficiency or employee effectiveness to affect our decision, especially in view of the fact that employees are absent from the office for considerable periods of time.
The Agency's reliance on Treasury, IRS is misplaced. In Treasury, IRS, the Authority found that a union proposal to provide 64 square feet of space for each bargaining unit employee did not prevent the agency from establishing a functional grouping of employees. Initially, however, the Authority found that the agency's plan to establish the functional grouping of employees constituted a means of performing work because the agency had established that the functional grouping facilitated supervision, communication, instructional capability, coverage for absent employees and created a team atmosphere. By contrast, as discussed above, the proposal here would not have a significant effect on supervision, communication and coverage. The additional factors that were present in Treasury, IRS have not been raised and do not appear to be present here.
This case is also distinguishable from 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, 355 (1987) (noting the absence of contradictory arguments, the Authority found, with regard to a proposal for office selection, that the agency had established "a link . . . between the location of employees in workspace and furthering the performance of work."); and American Federation of State, County and Municipal Employees, AFL-CIO, Local 2910 and Library of Congress, 19 FLRA 1180 (1985) (proposal concerning preference of seating assignments shown to directly and integrally relate to the agency's operations).
In sum, we find that the Agency has failed to establish that the proposal would interfere with the methods and means of performing work, as alleged. As the proposal also would not directly interfere with the Agency's right to determine its organization, we find that the proposal is within the duty to bargain.
The Agency must upon request, or as otherwise agreed to by the parties, bargain concerning the proposal.(2)