41:1283(99)NG - - NTEU and Treasury, IRS, Ft. Lauderdale, FL - - 1991 FLRAdec NG - - v41 p1283
[ v41 p1283 ]
The decision of the Authority follows:
41 FLRA No. 99
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 employees' seating assignments following the employees' relocation to a new office building. For the reasons stated below, we find that the proposal is negotiable.
II. The Proposal
The Union states that its proposal is as follows:
Revenue Officers be allowed to choose their own seating in the area designated for field collection employees in the new W. Palm Beach office. In the event of competing selections, the employee with the greater seniority would be granted his/her preference.
Petition for Review at 1.
III. Positions of the Parties
A. The Agency
The Agency claims that the proposal 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 in the previous office location, due to the physical layout, employees were not located together by group. Following relocation of the Agency's West Palm Beach employees to a new building, however, the Agency designated a rectangular area of approximately 4600 square feet on one floor to be occupied by the Collection Division. The Agency notes that within the Division, there are three groups of revenue officers, consisting, respectively, of 10, 5 and 11 revenue officers, and that each group has a separate group number, reference materials, group manager and group secretary. The Agency notes that there is a mix of employees at grades GS-9 through GS-12, and that each employee's desk is surrounded by partitions to afford the employee privacy.
The Agency maintains that the intent of the Union's proposal is to allow employees to choose at which desks they will sit within the entire space allocated to the three groups, with selection to be based on seniority, while the Agency's plan is to have employees seated by group. The Agency argues that the Union's proposal would (1) interfere with the creation of group identity, which would allow for better communication and discussion of procedures, goals and problems within a particular group; (2) prevent managers from seating employees with different skill levels in such a way as to develop an informal mentor system, to provide assistance and advice to less senior employees; (3) directly interfere with the ability of each group manager to maintain and monitor adherence to housekeeping, disclosure, and security guidelines by employees within the group; and (4) prevent management from "'segregati[ng]' . . . loquacious, disruptive, or poor performing employees, or the placement of these employees closer to the manager's desk." Statement of Position at 3.
Based on the above, the Agency argues that the proposal interferes with its right to determine the Agency's organization under section 7106(a)(1) of the Statute because the proposal has a "'direct and substantive relationship to [the] agency's administrative and functional structure[,]'" quoting National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398 (1990) (Treasury, IRS). Statement of Position at 2. As to the Agency's assertion that the proposal interferes with the methods and means of performing work, the Agency argues that it has satisfied the test set forth in Treasury, IRS for determining such interference. The Agency states that it has determined to functionally group employees and that separating revenue officers by group will facilitate supervision, communication, instructional capability, and create a team atmosphere. In support, the Agency also relies on American Federation of State, County and Municipal Employees, AFL-CIO, Local 2910 and Library of Congress, 19 FLRA 1180 (1985) (Library of Congress).
B. The Union
The Union argues that the meaning of the proposal is to "allow employees to sit where they choose, limited only by Agency, functional lines." Petition for Review at 1. The Union explains that the Agency has determined that employees will be seated by function and that the proposal "does not intend or effectively determine the general area where the Agency shall locate any particular function or supervisors." Id.
The Union argues that the Agency has not established a direct or substantial connection between seating and the Agency's functional structure for collecting delinquent taxes and returns. The Union states that the work of employees is "performed largely out of the office at taxpayer locations[,]" and that the employees are unsupervised at such times. Id. at 2. The Union adds that for taxpayers who visit revenue officers at the latter's office location, one conference room serves all three groups of revenue officers, so that "[w]hether seated by supervisory group or randomly throughout the work area, the delinquent taxes and returns will be collected by the Revenue Officers in the same fashion." Union Response at 3.
The Union also argues that the proposal does not interfere with the Agency's right to determine the methods, means, and technology of performing work. The Union argues that unlike the factual situation present in Library of Congress, in which employees were assigned to distinct functional duties using different reference materials, employees here all perform the same functional duties using the same materials, which employees either have at their desks or share with co-workers in all three groups. The Union also argues that the Agency's plan to seat employees by group would not facilitate supervision because employees are out of the office for significant periods of time. The Union adds that supervision would not be facilitated during the periods that the employees are in the office because partitions surrounding employees' desks and other obstacles prevent direct observation of employees. The Union rejects the Agency's claim that seating employees by group will create a team atmosphere. The Union states that employees are responsible for their own case inventories and do not work as teams. The Union also states that there is no substantial connection between the Agency's plan and instructional capability because training of revenue officers occurs either in classroom sessions or through on-the-job coaching, and management's seating plan has not seated any trainees and on-the-job coaches together. The Union also states that the Agency's seating plan shows no evidence of an informal mentor system, as asserted by the Agency. The Union adds that "whether seated beside an experienced Revenue Officer or not," employees would be free to seek information from any other revenue officers. Union Response at 6.
Finally, the Union argues that the Agency's plan does not substantially enhance communications as partitions around employees' desks serve to inhibit communication and, further, that employees would have to go to a central location in order to participate in meetings with their supervisors. The Union states that under its proposal, supervisors would simply have to walk a few additional steps to meet with and monitor employees.
IV. Analysis and Conclusions
We conclude that the proposal 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, in order for its designation of "duty station" 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 where they sit within the floor space designated for the three groups of revenue officers meets this requirement.
The Agency states that the proposal would have a "'direct and substantive relationship to [the] agency's administrative and functional structure . . . [f]or the reasons set forth . . . with regard to 'methods and means[.]'" Statement of Position at 2 (citation omitted). The Agency's argument must be rejected for two reasons. First, the arguments presented in support of the Agency's methods and means contention do not establish that the choice of seating assignment constitutes an exercise of the Agency's right to determine its organization under section 7106(a)(1) of the Statute. Second, nothing contained in the proposal or the Union's explanation would affect the Agency's decision to segment employees by group. In this regard, the Union clearly states that employee choice of seating would be "limited . . . by Agency, functional lines." Petition for Review at 1.
Accordingly, we conclude that the Agency has not established that its determination to allow employees to select where they sit from within the floor space designated for the three groups of revenue officers 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, 35 FLRA 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 here fails to establish that there is a direct and integral relationship between its plan of seating revenue officers within each group and accomplishing the Agency's mission. Initially, we stress that nothing in the proposal would prevent the Agency from assigning employees to groups. The proposal is concerned only with seating assignments, by allowing employees to choose where they sit on the floor space allocated for the three groups of revenue officers, rather than requiring employees to be seated by group. 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 assignments in other contexts. See, for example, 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); 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).
We find unpersuasive the Agency's assertions that seating employees within each group would allow for better communication, development of an informal mentor system, and permit supervisors to better monitor their employees. Office floor plans submitted by the Agency, as attachments to its statement of position, indicate that employees' desks are clustered in groups of four, and that there are seven such clusters. All of the clusters appear to be located within a very short distance of one another and in close proximity to each of the three group supervisors. Given this arrangement, a supervisor, at most, would have to walk a slightly greater distance in order to meet with an employee than if the employee were located closer to the supervisor. See HHS, Claremore (Authority found that grouping employees together for convenience of 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)). Similarly, employees seeking advice or assistance, at most, would have to walk the additional few steps to another employee's desk. Moreover, there are partitions surrounding employees' desks or other obstacles that serve to prevent or impair direct observation by supervisors of their employees. In this regard, the Union notes, without contradiction, that the conference room located near the office of one of the supervisors blocks the view of one of the clusters. Additionally, as employees are out of the office for significant periods of time, the need for seating on an intragroup basis in order to maintain supervisory control and communication is somewhat diminished.
Finally, as to the Agency's argument concerning the need to segregate, or move closer to the appropriate supervisor, disruptive or poorly performing employees, the record does not establish that such problems existed prior to the relocation when employees were not located by group or that such problems would not exist, at least in part, if employees were seated on an intragroup basis.
We find the Agency's reliance on Treasury, IRS and Library of Congress to be 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 those factors. In this regard, we note particularly the discussion above that supervision, communication and the ability of employees to seek assistance or advice from other employees would not be significantly impaired by the proposal. In Library of Congress, the Authority found that the agency had established that a proposal concerning preference of seating assignments was directly and integrally related to the agency's operations. No such showing has been made here.
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.(*)