47:0931(88)NG - - AFGE Local 2761 and Army Publications Distribution Center, St. Louis, MO - - 1993 FLRAdec NG - - v47 p931



[ v47 p931 ]
47:0931(88)NG
The decision of the Authority follows:


47 FLRA No. 88

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2761

(Union)

and

U.S. DEPARTMENT OF THE ARMY

ARMY PUBLICATIONS DISTRIBUTION CENTER

ST. LOUIS, MISSOURI

(Agency)

0-NG-2084

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

June 17, 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 under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of two proposals relating to maintenance employees' use of electric scooters for travel within their building.

Proposal 1 requires that the Agency properly maintain not less than three electric scooters for use by maintenance employees. Proposal 2 requires the Agency to continue to make electric scooters available to maintenance employees who, by "appropriate statements" or medical documentation, demonstrate that they suffer from physical hardship or a handicapping condition. We find that Proposal 1 does not directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. We also find that Proposals 1 and 2 do not directly interfere with management's right under section 7106(b)(1) of the Statute to determine the means of performing work. Accordingly, we find that the proposals are negotiable.

II. Proposals

Proposal 1

The Employer agrees to properly maintain not less than three (3) electrical scooters, for use by bargaining unit maintenance [e]mployees.

Proposal 2

The Employer agrees to seriously consider a hardship request from any employee that state[s] that he/she cannot ride the tricycle because of a physical hardship, age, heart condition, handicapping condition, etc. Employees that fall under this paragraph shall support their physical hardship, age, heart/handicapping condition with appropriate statements or medical documentation as necessary. The Employer agrees to maintain [the] status quo with electric scooter[s] for employees in this category.

[Only the underlined portion of Proposal 2 is in dispute.]

III. Positions of the Parties

A. Agency

According to the Agency, the facility involved in this case is located in an enclosed building and is responsible for storing and distributing various Agency publications. The Agency states that mechanical and electrical systems are used to accomplish its storage and distribution functions and that it employs maintenance personnel who are responsible for servicing those systems. The Agency also states that maintenance personnel "were previously authorized the use of electric scooters . . . to travel to sites in the building to conduct inspections or spot repairs of the equipment and to carry their tools and minor items of repair to the sites of mechanical/electrical breakdown." Statement of Position at 1. The Agency claims that it has decided to replace the electric scooters with "manually operated tricycles" that will be used for the same purposes. Id. at 2.

The Agency asserts that, because Proposals 1 and 2 require the use of electric scooters instead of tricycles, the proposals directly interfere with management's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute. Specifically, as to Proposal 1, the Agency contends that requiring the use of electric scooters conflicts with its determination that tricycles will be used as a method of traveling to repair sites and carrying tools within the building. In addition, the Agency argues that Proposal 1 violates management's right to assign work under section 7106(a)(2)(B) of the Statute by requiring that employees be assigned to maintain at least three scooters.

As to Proposal 2, the Agency acknowledges that it has an obligation to make reasonable accommodations for employees with a handicapping condition, but contends that the proposal "goes well beyond this obligation and mandates the use of electric scooters . . . whenever an employee claims, with 'an appropriate statement,' a need for an electric scooter." Id. at 3. The Agency argues that the proposal does not permit management to determine whether, for example, an employee's age is "a valid factor for providing the scooter or whether some other accommodation would resolve the situation." Id. The Agency maintains that, because the proposal requires a specific accommodation and prevents a determination that some other accommodation is acceptable, the proposal excessively interferes with management's right to determine the methods and means of performing work.

Finally, the Agency contends that, by mandating the use of electric scooters, the proposals totally abrogate management's decision to use tricycles and thereby excessively interfere with management's rights to determine the methods and means of performing work and to assign work.

B. Union

The Union contends that, although Proposal 1 falls within the area of management's rights, the Union has a right to negotiate over any decision that affects bargaining unit employees. The Union asserts that Proposal 1 is intended to ensure that the Agency properly maintains some of the scooters for maintenance employees who choose to use them in the future. According to the Union, the Agency has agreed to make tricycles available to maintenance employees "on a volunteer basis." Petition for Review at 1.

The Union notes that Proposal 2 is linked to Proposal 1 because, if the Agency removes the electric scooters and maintenance employees should become handicapped, there would be no scooters within the facility for them to ride. The Union asserts that Proposal 2 is consistent with the Agency's obligation under law to provide reasonable accommodations for employees with a handicapping condition. The Union states that the proposal is "intended . . . to ensure that any handicapped employee shall be provided an electric scooter to ride to his/her work area in which they carry their tools and equipment." Id. at 2.

IV. Analysis and Conclusions

Proposal 1 requires the Agency to properly maintain a minimum of three electric scooters for use by maintenance employees. Proposal 2 requires the Agency to continue to make electric scooters available to maintenance employees who, by appropriate statements or medical documentation, demonstrate that they suffer from physical hardship or a handicapping condition. We find that the proposals are negotiable.

The Authority employs a two-part test to determine whether a proposal directly interferes with management's right, under section 7106(b)(1) of the Statute, to determine the methods and means of performing work. In order to sustain such a claim, an agency must show that: (1) a direct and integral relationship exists between the particular method or means the agency has chosen and the accomplishment of the agency's mission; and (2) 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, Local 1920 and U.S. Department of Defense, Army and Air Force Exchange Service, Fort Hood Exchange, Fort Hood, Texas, 47 FLRA 340, 342 (1993).

With respect to the first part of the test, it is clear from the record that the electric scooters referenced in the proposals would be used by maintenance employees to travel throughout the building in the performance of their duties. Specifically, the Agency states, and the Union does not dispute, that the manually operated tricycles will be used, as were the electric scooters, "to travel to sites in the building to conduct inspections or spot repairs of the equipment and to carry their tools and minor items of repair to the sites of mechanical/electrical breakdown." Statement of Position at 1.

Based on the record, we find that the Agency has demonstrated a direct and integral relationship between the mode of transportation used by maintenance employees and the accomplishment of the Agency's mission. Specifically, we find that the mission of the Agency facility involved in this case is to store and distribute various Agency publications. The Agency uses mechanical and electrical systems to accomplish its storage and distribution functions and employs maintenance personnel to service those systems. As noted above, those maintenance personnel formerly used electric scooters to travel to building sites to conduct inspections or spot repairs of the equipment and to carry their tools and minor repair items to sites of mechanical or electrical breakdowns. Further, it is clear that the Agency has decided to replace the electric scooters with manually operated tricycles that will be used by maintenance personnel in the performance of their duties. Consequently, we find that the Agency has demonstrated that a direct and integral relationship exists between the mode of transportation used by maintenance employees and the accomplishment of the mission of the Agency. See, for example, American Federation of Government Employees, Local 1482 and Marine Corps Logistics Base, Barstow, California, 31 FLRA 916, 919 (1988).

However, as to the second part of the two-part test, the Agency has not identified the mission-related purposes it sought to achieve in replacing the electric scooters with manually operated tricycles for transporting maintenance workers in the performance of their duties. Moreover, it is not apparent from the record how requiring the Agency to maintain a minimum of three electric scooters for use by maintenance employees in the performance of their duties would directly interfere with the purposes for which the Agency decided to replace the electric scooters with manually operated tricycles. The parties bear the burden of creating a record on which we can base a negotiability determination. See, for example, American Federation of Government Employees, Local 1760 and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Region II, 46 FLRA 1285, 1291 (1993) (Region II). A party failing to satisfy its burden acts at its peril. See National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982).

Consequently, we find that the Agency has failed to demonstrate that, by requiring the Agency to maintain a minimum of three electric scooters, the proposals directly interfere with management's right to determine the means of performing work under section 7106(b)(1) of the Statute. We find, therefore, that the proposals do not directly interfere with management's determination of the means of performing the Agency's work. In making this finding, we do not decide whether, in a case with a different record, a proposal requiring an agency to use a particular mode of transportation would directly interfere with the mission-related purposes for which the agency adopted some other mode of transportation.

The Agency also argues that Proposal 1 violates management's right to assign work under section 7106(a)(2)(B) of the Statute by requiring that employees be assigned to maintain the scooters. However, Proposal 1 only requires that the Agency maintain a minimum of three electric scooters. The proposal does not address the assignment of work. The proposal does not, for example, require the Agency to assign any particular work to employees. We have previously held that to conclude that a proposal or provision interferes with management's right to assign work simply because it requires an agency to take some action would completely nullify the obligation to bargain because no obligation of any kind could be placed on management through negotiations. For example, Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 822-23 (1991). Therefore, we do not find that an otherwise negotiable proposal or provision is nonnegotiable based simply on the fact that an agency may have to take some action to fulfill the obligation placed upon it by the proposal or provision. Id. Consequently, the fact tha