53:1435(130)NG - - NFFE Local 7 and Agriculture, Office of Rural Development, Portland, OR - - 1998 FLRAdec NG - - v53 p1435



[ v53 p1435 ]
53:1435(130)NG
The decision of the Authority follows:


53 FLRA No. 130

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 7

(Union)

and

U.S. DEPARTMENT OF AGRICULTURE

OFFICE OF RURAL DEVELOPMENT

PORTLAND, OREGON

(Agency)

0-NG-2339

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

February 27, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

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), and concerns the negotiability of two proposals.(1) The Agency filed a response to the Union's request, and the Union filed a reply to the Agency's response.

For the reasons that follow, we find the proposals are not within the duty to bargain.

II. Background

Pursuant to a reorganization plan, the Agency proposed moving its Madras and Area IA offices approximately 40 and 30 miles, respectively, from their current locations. In response, the Union proposed the following:

Proposal 1

The Agency shall not move the current Madras local office from its present location.

Proposal 2

The Agency shall not move the current Area Office 1A from the downtown Portland area. If the Agency chooses to relocate this office to another location within downtown Portland, the Union will be allowed to bargain over the impact and implementation of its move.

III. Positions of the Parties

A. Union's Position

The Union contends that the proposals concern the methods and means of performing work, within the meaning of section 7106(b)(1) of the Statute. According to the Union, the Agency's relocation decisions involve only "where the work will be performed" because other matters, including customer areas to be served, customers, and work processes, would remain the same before and after relocation. Response at 1.

The Union references unspecified Authority case law holding that "choice of workspaces is a negotiable matter unless the agency alleged that it has a functional reason, such as supervision, for grouping employees together." Id. The Union contends that, if management alleges such a functional reason, "then the decision involve[s] the means of performing work and [i]s bargainable at the election of the Agency under [section] 7106(b)(1)." Id. The Union contends that the Authority should determine that, "although the Agency has never revealed a functional rationale for the move of the two offices, the move of these offices involves the means, methods and technology [of performing the Agency's work]" Id.

B. Agency's Position

The Agency contends that the Union's proposals are outside the duty to bargain because they infringe on management's right to determine its organization within the meaning of section 7106(a) of the Statute. Citing National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398 (1990) (IRS), the Agency asserts that the right to determine organization includes the right to determine the geographic locations in which an agency conducts its operations.

IV. Analysis and Conclusions

In National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386, 393 (1995) (VAMC, Lexington), the Authority set forth the approach it applies in a negotiability dispute where parties disagree whether a proposal comes within the terms of section 7106(a) or section 7106(b)(1) of the Statute. National Association of Government Employees, Local R1-109 and Department of Veterans Affairs, Medical Center, Newington, Connecticut, 53 FLRA 403, 408 (1997) (VAMC, Newington). Under this approach, the Authority first examines the contention that a proposal is electively bargainable under section 7106(b)(1). Id. If the proposal concerns a subject set forth in section 7106(b)(1), the Authority does not address contentions that the proposal also affects the exercise of management's authority under section 7106(a). National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 53 FLRA 526, 531 (1997). If, however, the proposal is not encompassed by section 7106(b)(1), the Authority proceeds to analyze it under the appropriate subsection of 7106(a).(2)

1. The proposals do not concern the methods and means of performing work under section 7106(b)(1).

There are two prongs to the Authority's current test used to determine whether a proposal concerns the methods and means of performing work. First, the proposal must concern a "method" or "means" as defined by the Authority. In this regard, the Authority construes "method" to refer to "the way in which an agency performs its work." International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA 813, 818 (1996) (emphasis added). 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. Second, it must be shown that (1) there is a direct and integral relationship between the particular methods 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, e.g., Association of Civilian Technicians, Arizona Army Chapter 61 and U.S. Department of Defense, National Guard Bureau, Arizona National Guard, 48 FLRA 412, 420 (1993).

The Union specifically asserts that, as a result of the Agency's decision to relocate the two offices: (1) the customer area to be served would remain "exactly the same"; (2) the "customers would be the same"; (3) the "loans would be the same"; and (4) the "paperwork processing would be the same[.]" Response at 1. Given these Union assertions, there is no basis on which to conclude that the proposals concern methods and means by which the Agency performs its work, based on the Authority's current definitions of "method" and "means." Accordingly, the proposals do not concern the methods and means of performing work, within the meaning of section 7106(b)(1) of the Statute, under Prong 1 of the Authority's test.(3)

2. The proposals affect management's right to determine the organization of the agency under section 7106(a).

Consistent with VAMC, Lexington, it is necessary to determine whether the proposals affect the Agency's right to determine its organization under section 7106(a)(1) of the Statute. This right encompasses an agency's determination as to how it will structure itself to accomplish its mission and functions, including such matters as the geographic locations in which an agency will provide services or otherwise conduct its operations. IRS, 35 FLRA at 409.

The proposals would prevent the Agency from implementing its decision to change the geographic locations of its two offices. As such, the proposals affect the Agency's right under section 7106(a)(1) to determine its organization. As there is no assertion that the proposals are bargainable under section 7106(b)(2) or (3), they are outside the duty to bargain.

V. Order

The petition for review is dismissed.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Union withdrew its petition as to four additional proposals.

2. If a proposal concerns a matter found bargainable at the election of the Agency under section 7106(b)(1), then the Authority will dismiss the petition for review as to that proposal. VAMC, Lexington, 51 FLRA at 394. This is consistent with 5 C.F.R. § 2424.10(b), which states:

If the Authority finds that the duty to bargain extends to the matter proposed to be bargained only at the election of the agency, the Authority shall so state and issue an order dismissing the petition for review of the negotiability issue.

3. In view of our conclusion, we do not need to determine whether the proposal would satisfy Prong 2 of the Authority's test. We note that, in this case, the assertion that the proposal constitutes a method or means of performing work under section 7106(b)(1) of the Statute has been raised by a union, not an agency. We also note that the decisions establishing the Authority's test all involved agency assertions that proposals conflicted with the right to make determinations regarding methods and means. However, as neither party has questioned the contin