47:0340(26)NG - - AFGE, Local 1920 and DOD, Army and Air Force Exchange Service, Fort Hood Exchange, Fort Hood, TX - - 1993 FLRAdec NG - - v47 p340



[ v47 p340 ]
47:0340(26)NG
The decision of the Authority follows:


47 FLRA No. 26

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1920

(Union)

and

U.S. DEPARTMENT OF DEFENSE

ARMY AND AIR FORCE EXCHANGE SERVICE

FORT HOOD EXCHANGE

FORT HOOD, TEXAS

(Agency)

0-NG-2053

DECISION AND ORDER ON NEGOTIABILITY ISSUES

April 2, 1993

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 five proposals submitted by the Union during bargaining over the relocation of certain administrative functions of the post exchange, and the employees who perform those functions, from the administrative offices of the post exchange to the main exchange store. The Agency filed a statement of position. The Union did not file a response to the Agency's statement of position.

The disputed proposals require the Agency to increase or reduce the size of specific offices at the main exchange store, and to relocate employees already at the store, in order to accommodate the employees who will be moved to the store from the administrative offices. For the following reasons, we find that the proposals are nonnegotiable.

II. Proposal 1

Expand the size of the proposed Dishonored Check Office by moving the east wall 10 feet onto the sales floor.

A. Positions of the Parties

1. Agency

The Agency notes that the Dishonored Check Function (DCF) of the post exchange handles approximately 1375 bad checks in a month. The Agency also notes that the DCF was located at "a considerable distance" from the main store. Statement of Position (Statement) at 2. According to the Agency, because the DCF was not at the main store, customers not only suffered the embarrassment of "bouncing a check," but then had to locate the DCF office, drive there, find parking, and attempt to resolve the problem. Id. Moreover, because a significant number of customers pay by check, the Agency contends that bad checks are a major problem for the post exchange and that the existence of barriers to resolving that problem results in "unacceptable" customer relations practices. Id. (emphasis omitted).

The Agency explains that, in order to eliminate the barrier to the resolution of customers' problems with bad checks that was created by the distance between the administrative offices and the main store, "it was decided to relocate the DCF to the main store, in a place more accessible to most of [the] customers, but to a place which afforded them some privacy." Id. According to the Agency, in bargaining over the impact and implementation of the relocation of the DCF, the Union claimed that "a smaller work space" would result from the relocation. Id. The Agency asserts, however, that "technological advances" will result in less equipment and "no significant diminution of actual work space." Id.

The Agency maintains generally, with respect to all of the disputed proposals, that the "layout and design of the stores and the location of personnel and service functions" constitute the methods, means, and technology by which the post exchange accomplishes its mission. Id. at 3. The Agency contends that the layout and design of the store and the location of the various service functions within the store are integral to management's ability to provide services to the customers of the post exchange and thus constitute an exercise of management's right to determine its mission. The Agency also contends that decisions as to "[w]here employees perform their duties and the manner in which they interact with customers" constitute the exercise of management's right to direct employees. Id. at 4. The Agency further asserts, without explanation, that all of the proposals, including Proposal 1, interfere with management's right to determine its internal security practices.

The Agency states that the mission of the post exchange is to provide goods and services to its customers. The Agency claims that Proposal 1, requiring management to move the east wall into the sales floor, directly interferes with management's right to determine its mission because it "would reduce the size of the sales floor, as well as the esthetics and functionality thereof." Id. at 5. The Agency argues that, by requiring management to move the east wall of the proposed DCF office into the existing sales floor, the proposal would reduce the size of the sales floor, which could require the elimination of products from the shelves or limit the quantities of items stocked on the shelves, resulting in inconvenience for customers and thereby restricting its ability to accomplish its mission. The Agency argues that "[b]alancing sales space and office space and the costs of each" is a matter that "goes to the core of success in fulfilling our mission." Id.

2. Union

As noted above, the Union did not file a response to the Agency's statement of position. The Union's petition for review outlines the history of the parties' bargaining over the relocation of the DCF to the main store and states that the base Fire Chief notified the management of the post exchange that the proposed relocation "violated the National Fire Protection Association Life Safety Code 101 Section 25-1.7.1(d)." Petition for Review at 1.

B. Analysis and Conclusions

For the following reasons, we find that Proposal 1 is nonnegotiable.

The Authority employs a two-part test to determine whether a proposal directly interferes with management's right, under section 7106(b)(1), to determine the methods and means of performing the agency's work. In order to sustain such a claim, an agency must show: (1) that a direct relationship exists between the particular method or means the agency has chosen and the accomplishment of the agency's mission; and (2) that the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. See, for example, American Federation of Government Employees, National Border Patrol Council, Local 2544 and U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, Tucson, Arizona, 46 FLRA 930 (1992) (Border Patrol, Tucson), petition for review filed, No. 93-70137 (9th Cir. Feb. 9, 1993); 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, 512 (1991) (Indian Hospital, Claremore).

We have construed the term "method" as referring to the way in which an agency performs its work. See Border Patrol, Tucson, 46 FLRA at 943; Indian Hospital, Claremore, 39 FLRA at 513. The term "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. A particular means used by an agency need not be indispensable to the accomplishment of the agency's mission. See Border Patrol, Tucson, 46 FLRA at 943; Indian Hospital, Claremore, 39 FLRA at 513. 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 contends as to Proposal 1 that the design and layout of the main exchange store constitutes a method or means of accomplishing the Agency's mission of providing goods and services to its customers. We find that the Agency's determination as to the design and layout of the main exchange store is a plan that is used by the Agency to accomplish its sales mission. In particular, we find that the amount of space that the Agency will allocate to displaying goods and services and the arrangement of that space for the display of those goods and services are among the measures used by the Agency to facilitate its sales mission. We find, therefore, that the design and layout of the store constitutes a "means" within the meaning of section 7106(b)(1) of the Statute.

Further, we find that, under the first part of the test set forth above, management's decision as to the design and layout of the main exchange store is directly and integrally related to the sales mission of that store and that, under the second part of that test, Proposal 1 directly interferes with the purpose for which the Agency adopted that plan. In particular, the Agency states that relocating the east wall of the area into which the Dishonored Check Office will be moved, as required by the proposal, would affect the layout of the store by reducing the area of the sales floor. The Union does not dispute the Agency's statement. It is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet its burden acts at its peril. See, for example, National Association of Government Employees, Local R1-144 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 43 FLRA 1331, 1351 (1992) (Naval Underwater Systems Center).

Based on the Agency's uncontroverted statement, we conclude that the Agency has demonstrated that the design and layout of the sales floor is directly and integrally related to the sales mission of the Agency. We also conclude, based on the Agency's uncontroverted statement, that by reducing the area of the sales floor, Proposal 1 would directly interfere with the sales-related purposes for which the Agency adopted the design and layout of the main exchange store. Consequently, because we find that, based on the record in this case, the Agency has demonstrated that Proposal 1 would directly interfere with the sales-related purposes for which the Agency adopted the design and layout of the main exchange store, we conclude that Proposal 1 directly interferes with management's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute.

As the proposal directly interferes with management's right to determine the methods and means of performing work, and as the Union does not contend that the proposal is intended as an appropriate arrangement under section 7106(b)(3) of the Statute, we find that Proposal 1 is nonnegotiable. See International Brotherhood of Police Officers and U.S. Department of the Army, Watervliet Arsenal, Watervliet, New York, 46 FLRA 333, 338 (1992) (Watervliet Arsenal). In view of our determination, we do not address the Agency's other contentions as to the negotiability of the proposal.

III. Proposal 2

Relocating the Main Store accounting people to the administrative offices to make room for the Dishonored Check people.

A. Positions of the Parties

1. Agency

The Agency claims that by requiring management to move the main exchange store accounting personnel to the administrative offices of the post exchange, Proposal 2 would affect nonunit employees and would directly interfere with management's rights to assign and direct employees and to determine the methods, means, and technology of performing work. The Agency contends that moving accounting personnel would affect nonunit personnel because there are nonunit personnel in the accounting office. The Agency also contends that, because accounting personnel "deal with documents generated" in the main store, relocating those employees would impede the "accounting mission" of the Agency and would "severely hamper" implementation of a new computer system "linking the main store accounting office with headquarters . . . ." Statement at 6.

Additionally, the Agency claims that because accounting personnel work with documents generated in the main store, Proposal 2, which concerns where those employees will be located, interferes with management's right to direct employees in their work. The Agency also claims that because the "number and location of the accounting personnel is integrally related to the technology, methods and means of [the] accounting system [of the post exchange,]" moving those personnel would interfere with that function. Id.

2. Union

As noted above, the Union did not file a response to the Agency's statement of position.

B. Analysis and Conclusions

For the following reasons, we find that Proposal 2 is nonnegotiable.

1. Effect on Nonunit Employees

The Agency argues that the proposal is nonnegotiable because of its effects on personnel outside the unit. In United States Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992) (Cherry Point), the United States Court of Appeals for the District of Columbia Circuit approved the Authority's adoption of the vitally affects test used in the private sector "to define the limited circumstances in which subjects not normally seen to be within the compass of mandatory bargaining--e.g., the terms of a relationship between the employer and a third party--may become mandatory subjects due to their effect on bargaining unit employees." 952 F.2d at 1440. The court also stated that the test "is not implicated, however, merely because a union proposal, which is otherwise within the scope of mandatory bargaining, would, if accepted, have some impact on persons outside the bargaining unit." Id. (emphasis in original). According to the court, the vitally affects test applies only when the interests of nonunit personnel are "directly implicated" by a proposal--when a proposal "purports to regulate the terms and conditions of employment of non[]unit employees." Id. at 1441. See National Association of Government Employees, Local R1-100 and U.S. Department of the Navy, Navy Branch Exchange Store, U.S. Naval Submarine Base, New London, Groton, Connecticut, 46 FLRA 520, 523 (1992).

The court recognized that most union bargaining demands would have some "extra-unit effects" on nonunit personnel but held that such effects would not alter an employer's duty to bargain over mandatory subjects of bargaining. Cherry Point, 952 F.2d at 1440 n.6. See also Naval Underwater Systems Center, 43 FLRA at 1343; Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 237 (1986) (the Authority stated that "a proposal which is principally focused on bargaining unit positions or employees and which is otherwise consistent with applicable laws and regulations is not rendered nonnegotiable merely because it also would have some impact on employees outside the bargaining unit").

The record demonstrates that some of the accounting office employees at the main exchange store who are covered by Proposal 2 are unit employees. The Agency does not dispute the fact that the relocation of those employees to the administrative office in order to make room for the Dishonored Check Office employees at the main exchange store is a matter pertaining to the conditions of employment of unit employees both in the accounting office and the Dishonored Check office. We find, therefore, that Proposal 2 principally relates to the conditions of employment of unit employees rather than purporting to regulate the conditions of employment of accounting office employees who are not in the unit. Consequently, consistent with the principles stated in Cherry Point, because Proposal 2 concerns the conditions of employment of unit employees, we find that: (1) the vitally affects test is not implicated; and (2) the fact that the relocation of unit employees required by the proposal may also involve the relocation of nonunit employees does not render the proposal nonnegotiable.

2. Management's Right to Determine the Methods and Means of Performing Work

Applying the two-part test for determining whether a proposal directly interferes with management's right to determine the methods and means of performing work outlined above, we find that there is a direct and integral relationship between the location of the accounting office and the accomplishment of the mission of the Agency. The Agency states that the number and location of accounting personnel is a method and a means that is integrally related to the accounting system of the post exchange. Specifically, the Agency states that the main exchange store accounting personnel work with documents generated in the main store and that relocation of the accounting personnel would affect implementation of the computer system linking the main store and headquarters. The Union does not dispute the Agency's statement. As noted above, the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet its burden acts at its peril. See Naval Underwater Systems Center, 43 FLRA at 1351.

Based on the Agency's uncontroverted statement, we conclude that there is a direct and integral relationship between the location of the accounting office and the accomplishment of the mission of the Agency's accounting function. We also conclude, based on the Agency's uncontroverted statement, that by requiring the relocation of the accounting office, Proposal 2 directly interferes with the mission-related purposes for which the Agency located the accounting personnel at the main exchange store. Compare Border Patrol, Tucson, 46 FLRA at 951-54 (based on the union's arguments disputing the agency's claims, a proposal relating to the location of the computer printer was found not to directly interfere with management's right to determine the methods and means of performing work). Consequently, because we find that, based on the record in this case, the Agency has demonstrated that Proposal 2 would directly interfere with the mission-related purposes for which the Agency located the accounting office at the main exchange store, we conclude that Proposal 2 directly interferes with management's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute.

As the proposal directly interferes with management's right to determine the methods and means of performing work, and as the Union does not contend that the proposal is intended as an appropriate arrangement under section 7106(b)(3) of the Statute, we find that Proposal 2 is nonnegotiable. See Watervliet Arsenal, 46 FLRA at 338. In view of our determination, we do not address the Agency's other contentions as to the negotiability of the proposal.

IV. Proposal 3

Relocating the Refunds Section to the Customer Service Area to make room for the Dishonored Check people.

A. Positions of the Parties

1. Agency

The Agency maintains that by requiring the relocation of the Refunds Section to the Customer Service area, Proposal 3 directly interferes with management's rights to assign and direct employees, to determine the methods, means, and technology of performing work, and to determine its internal security practices. The Agency notes that the Refunds Section is in the front of the store to "prevent fraud." Statement at 6. According to the Agency, the location of the Refunds Section in the front of the store makes it difficult for customers to "try to get refunds for merchandise they have just taken off the shelf." Id. at 7.

The Agency argues that the location of the Refunds Section and the DCF is integrally related to the technology, methods, and means of accomplishing the Agency's mission of providing customer service. The Agency contends that, because switching the location of the Refunds Section and the DCF "would reduce the quality of customer service" at the post exchange, the proposal directly interferes with management's rights to determine its mission and the technology, methods, and means of performing its work. Id.

2. Union

As noted above, the Union did not file a response to the Agency's statement of position.

B. Analysis and Conclusions

For the following reasons, we find that Proposal 3 is nonnegotiable.

Under section 7106(a)(1) of the Statute, management's right to determine its internal security practices includes the right to determine the policies and practices that are necessary to safeguard its operations, personnel and physical property against internal and external risks. See, for example, Border Patrol, Tucson, 46 FLRA at 946. Where an agency demonstrates a link or a reasonable connection between its goal of safeguarding its personnel, property, or operations and its practice or decision designed to implement that goal, a proposal that directly interferes with or negates the agency's practice or decision conflicts with the agency's right under section 7106(a)(1) of the Statute. See American Federation of Government Employees, Local 1482 and U.S. Department of the Navy, United States Marine Corps Logistics Base, Barstow, California, 40 FLRA 12, 15-16 (1991). We will not examine the extent to which the practices adopted by management to achieve its security objectives actually facilitate the accomplishment of those objectives. See National Federation of Federal Employees, Local 2058 and U.S. Department of the Army, Aberdeen Proving Ground Support Activity, Aberdeen Proving Ground, Maryland, 38 FLRA 1389, 1403-04 (1991).

Under this analytical framework, the threshold issue with respect to Proposal 3 is whether the Agency has demonstrated a link or a reasonable connection between the location of the Refunds Section and internal security considerations. The Agency claims that the Refunds Section is in the front of the main store to prevent fraud because that location makes it difficult for customers to attempt to get refunds for merchandise that they have just taken off of the shelves. The Union does not dispute the Agency's contentions as to the reasons for the location of the Refunds Section. Consequently, we find that the Agency has demonstrated a reasonable connection between the location of the Refunds Section and the protection of the property in the main store. We conclude, therefore, that management's decision as to the location of the Refunds Section constitutes a determination of its internal security practices within the meaning of section 7106(a)(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, 661-62 (1986).

Proposal 3 requires management to move the Refunds Section from its present location in the front of the main store to the area currently occupied by the Customer Service section. We note that the Union does not claim that the proposal would allow the Refunds Section to remain at the front of the store. As noted above, the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet its burden acts at its peril. See Naval Underwater Systems Center, 43 FLRA at 1351. We conclude, therefore, that by requiring management to negotiate over its decision to move the Refunds Section from the front of the store, Proposal 3 directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. Id.

As the proposal directly interferes with management's right to determine its internal security practices, and as the Union does not contend that the proposal is intended as an appropriate arrangement under section 7106(b)(3) of the Statute, we find that Proposal 3 is nonnegotiable. See Watervliet Arsenal, 46 FLRA at 338. In view of our determination, we do not address the Agency's other contentions as to the negotiability of the proposal.

V. Proposal 4

Reducing the size of the Customer Service Area to make room for the Dishonored Check people.

A. Positions of the Parties

1. Agency

The Agency maintains that Proposal 4, requiring the reduction in size of the Customer Service Area to make room for DCF personnel, directly interferes with management's rights to direct and assign employees and to determine the methods, means, and technology of performing work. According to the Agency, customer service activities are labor intensive and a reduction in the amount of space provided for those activities would limit the number of personnel available to provide services to customers. The Agency argues that "the design of the store's floor plan (including the size and location of the Customer Service area)" is "a major component of the technology[,] methods[,] and means by which [the store's] mission is accomplished" and that reducing the Customer Service area interferes with management's ability to accomplish that mission because it "limits the number and/or quality of the services" the store can provide. Statement at 8. The Agency also argues that a reduction in the amount of space would "impair" the ability of management "to direct the Customer Service employees in the performance of their duties" because it would limit management "in the type, quantity, quality, and speed of work" that could be expected of them. Id.

2. Union

As noted above, the Union did not file a response to the Agency's Statement of Position.

B. Analysis and Conclusions

For the following reasons, we find that Proposal 4 is nonnegotiable.

Applying the two-part test for determining whether a proposal directly interferes with management's right to determine the methods and means of performing work outlined above, we find that there is a direct and integral relationship between the size of the Customer Service area and the accomplishment of the mission of the Agency. The Agency states that the design of the main exchange store's floor plan, including the size and location of the Customer Service area is a method and means by which the Agency accomplishes its mission of providing goods and services to its customers. Specifically, the Agency states that, by reducing the size of the Customer Service area, the proposal would result in a reduction in the number of personnel available to provide services to customers, thereby limiting the number and quality of the services that the store can provide. The Union does not dispute the Agency's statement. As noted above, the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet its burden acts at its peril. See Naval Underwater Systems Center, 43 FLRA at 1351.

Based on the Agency's uncontroverted statement, we conclude that there is a direct and integral relationship between the design of the main exchange store's floor plan, including the size and location of the Customer Service area, and the Agency's mission of providing goods and services to its customers. We also conclude, based on the Agency's uncontroverted statement, that by reducing the size of the Customer Service area, Proposal 4 directly interferes with the mission-related purposes for which the Agency adopted a floor plan that included a Customer Service area with the size and location of the current area. Consequently, because we find that, based on the record in this case, the Agency has demonstrated that Proposal 4 would directly interfere with the mission-related purposes for which the Agency adopted the design of the main exchange store's floor plan, including the size and location of the Customer Service area, we conclude that Proposal 4 directly interferes with management's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute.

As the proposal directly interferes with management's right to determine the methods and means of performing work, and as the Union does not contend that the proposal is intended as an appropriate arrangement under section 7106(b)(3) of the Statute, we find that Proposal 4 is nonnegotiable. See Watervliet Arsenal, 46 FLRA at 338. In view of our determination, we do not address the Agency's other contentions as to the negotiability of the proposal.

VI. Proposal 5

Finding or constructing a room, anywhere, with dimensions of 180 to 200 square feet.

A. Positions of the Parties

1. Agency

The Agency claims that Proposal 5, requiring management to construct a room, anywhere, with specified dimensions, directly interferes with management's rights to direct and assign employees and to determine the technology, methods, and means of performing work. The Agency asserts that the DCF must be located at the main store and that constructing a room at the store would take space away from other functions and would thereby negatively affect the accomplishment of those functions and may "involve" nonunit employees. Statement at 9. The Agency also maintains that "the location of employees in a retail environment" can affect management's ability to direct employees because it limits management's ability "to determine the optimal customer-employee relationship." Statement at 9.

2. Union

As noted above, the Union did not file a response to the Agency's Statement of Position.

B. Analysis and Conclusions

For the following reasons, we find that Proposal 5 is nonnegotiable.

Proposal 5 requires the Agency to find or build a room of particular dimensions "anywhere." The Agency interprets the proposal as requiring it to find or build a room of those dimensions in the main exchange store and the Union does not dispute that interpretation. We note, in particular, that the Union does not identify an alternative location for the proposed room or define the term "anywhere" as used in the proposal. As noted above, the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet its burden acts at its peril. See Naval Underwater Systems Center, 43 FLRA at 1351. Accordingly, we adopt the Agency's interpretation of the proposal.

1. Effect on Nonunit Employees

The Agency argues that because Proposal 5 may require the relocation of personnel at the main exchange store, the proposal may involve nonunit employees. However, because the proposal concerns finding or constructing a room in the main exchange store for unit employees in the DCF office, we find that the proposal principally relates to the conditions of employment of unit employees rather than purporting to regulate the conditions of employment of nonunit employees. Accordingly, for the reasons stated in our analysis of Proposal 2 above, we reject the Agency's argument.

2. Management's Right to Determine the Methods and Means of Performing Work

Applying the two-part test for determining whether a proposal directly interferes with management's right to determine the methods and means of performing work, we find that there is a direct and integral relationship between finding and constructing a room with the prescribed dimensions in the main exchange store and the accomplishment of the mission of the Agency. The Agency asserts that management's decision as to the location of various functions and offices in the main exchange store is related to the mission of the store and constitutes a determination of the methods and means of performing work. Specifically, the Agency states that there is no space at the main exchange store to construct a room for the DCF office without using space that is occupied by other functions and any resulting change in location for those other functions would have an adverse effect on the Agency's mission. The Union does not dispute the Agency's statement. As noted above, the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet its burden acts at its peril. See Naval Underwater Systems Center, 43 FLRA at 1351.

Based on the Agency's uncontroverted statement, we conclude that there is a direct and integral relationship between finding or constructing a room with the prescribed dimensions in the main exchange store and the accomplishment of the Agency's mission. We also conclude, based on the Agency's uncontroverted statement, that by requiring management to find or construct a