National Treasury Employees Union, Chapter 101 (Union) and United States, Department of the Treasury, Customs Service, Washington, D.C. (Agency)
[ v58 p653 ]
58 FLRA No. 164
DEPARTMENT OF THE TREASURY
WASHINGTON, D.C. [n1]
DECISION AND ORDER
ON A NEGOTIABILITY ISSUE
July 14, 2003
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n2]
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 one proposal relating to employee workstation assignments in the Agency's Office of Regulations and Rulings ("OR&R") following the Agency's move to a new location. The Agency filed a statement of position, to which the Union filed a response. The Agency also filed a reply to the Union's response.
For the reasons set forth below, we find that the proposal is outside the duty to bargain.
Bargaining unit employees will select, in accordance with the seniority system set forth in the aforementioned OR&R Cube Rotation Policy (see attachment "A"), their cubes/workstations from among those cubes/workstations located on the floor assigned to the principal Division and Branch in which the bargaining unit member performs her/his duties.
III. Positions of the Parties
The Agency states that employees within the OR&R are grouped into two divisions, one on each floor, and that employees are further grouped into eleven branches, each responsible for "a discrete area of the law." Statement of Position at 3. The Agency explains that there are approximately 11,000 square feet of office space on each floor, "a large space over which to locate employees dispersed from the [b]ranch." Id. at 7. The Agency adds that its selection of "the space design" and "[t]he layout of the workstations," is intended to collocate employees within their branches, rather than their divisions. Id.
The Agency argues that the proposal would affect its right to determine internal security practices. According to the Agency, "[d]ue to recent events, it is imperative to be able for a particular supervisor to be able to locate his or her employees for purposes of ensuring swift and safe evacuation." Statement of Position at 2. The Agency notes that on September 11, 2001, one of its facilities at the World Trade Center Plaza was destroyed and, during an evacuation that occurred at a facility in Washington, D.C., managers were unable to locate employees. Specifically, the Agency states that "managers were unaware if their employees, who were not collocated with their branches, had already left the building." Reply at 4. The Agency adds that "[b]y collocating employees within their branches, management can control their internal security in a more efficient manner." Id. In support, the Agency relies on AFGE, Local 1030, 57 FLRA 901 (2002) (AFGE). The Agency also notes, in response to a point raised by the Union below, that there is an exception of two employees to its plan of collocating employees by branch based on the location at which the specific duties of those employees must be performed.
The Agency also asserts that, by allowing employees' workstations to be located anywhere on the floor within their divisions, rather than within their respective branches, the proposal affects management's ability to effectively manage employees and their caseloads, thereby affecting management's rights to determine its organization and the methods and means of performing work.
The Union disputes the Agency's claim that the proposal affects management's rights. The Union states that employees were not collocated within their [ v58 p654 ] branches in the prior location and asserts that the proposal is intended to "continue the status quo for seating assignments . . . ." Petition at 4.
More particularly, as to the right to determine internal security practices, the Union asserts that the Agency has failed to establish a reasonable connection between seating arrangements and the Agency's internal security practices. The Union states that the Agency's argument "implies that during an evacuation emergency, employees will have to stay in the building in their assigned location until they are accounted for by the manager." Response at 2. According to the Union, this is an "irrational suggestion." Id. The Union also states that the Agency's argument is "undermined" by the fact that two employees in a particular division are located on a different floor than the remainder of their division. Id.
As to the Agency's argument concerning its rights to determine its organization and the methods and means of performing work, the Union asserts that the Agency has failed to show that seating arrangements have a direct and substantial relationship to the Agency's administrative or functional structure. The Union adds that, given an increase in productivity when employees were not collocated within their branches, the Agency has failed to show a direct and integral relationship between collocation and productivity and has failed to show how maintenance of the status quo would interfere with the Agency's mission.
IV. Analysis and Conclusions
A. Meaning of the Proposal
The parties agree that, using the seniority formula in Section III, paragraph 2(b) of the existing rotation policy, the proposal would allow employees "to select their cubes/workstations anywhere on the floor assigned to the employees' respective division and branch." [n3] Post-Petition Conference Record at 2 (emphasis in original). The parties further agree that, "contrary to the current configuration of employees' workstations at the Mint Annex, the proposal would not require employees to be co-located or clustered with other employees and supervisors in their respective branch." Id. In sum, and as further agreed to by the parties, the only disputed portion of the proposal is that which "allows employees to select workstations anywhere on the particular floor to which their branch and division have been assigned." Id.
B. The Proposal Affects the Right to Determine
Internal Security Under § 7106(a)(1)
Under § 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 AFGE, Local 1920, 47 FLRA 340, 348 (1993). 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 affects the agency's right under § 7106(a)(1) of the Statute. See id. The Authority 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 id. at 349. Furthermore, arguments that essentially challenge the effectiveness of an agency's security measures do not operate to defeat a claim that those measures pertain to an agency's internal security practices. See, e.g., AFGE, Local 1904, 56 FLRA 787, 789 (2000).
In NTEU, Chap. 83, 35 FLRA 398 (1990), the Authority held that where a link is shown between an agency's internal security practices and the collocation of specific employees and specific facilities, a proposal to relocate the facilities conflicts with management's right to determine internal security practices. 35 FLRA at 410 (citing AFGE, Local 644, AFL-CIO, 21 FLRA 658, 661-62 (1986), in which the Authority found that a proposal to relocate a library and convert space to offices affected the agency's right to determine its internal security practices).
Based upon specific events that occurred at the Agency's facilities that endangered employees' safety, the Agency asserts that collocating employees within their branches at their new office location will allow managers to "control their internal security in a more efficient manner." Reply at 4. The Agency maintains that the proposal would affect its right to determine internal security practices by impairing the ability of each supervisor "to locate his or her employees for purposes of ensuring swift and safe evacuation." Statement of Position at 2. The Agency adds that "[w]hen managers need to police a floor for employees, there is an increased possibility of compromising an orderly and prompt evacuation, and places the manager and employees in harms way." Reply at 4. The Agency argues that "[b]y collocating employees within their branches, management can control their internal security in a more efficient manner." Id.
We find, in the circumstances of this case and contrary to the Union's sole argument in this regard, that the Agency has established a link between its plan to locate employees within their respective branches and its goal of safeguarding its personnel. As the Agency notes, each floor that houses a division is approximately 11,000 square feet. The Agency has determined that a policy of locating employees by each of 11 branches, rather than by one of two larger divisions, will allow for greater control over employee safety when evacuations are required, as has occurred, and would obviate the [ v58 p655 ] need for managers to police an entire floor to ensure employee safety. Although the plan of clustering employees within branches, rather than by division, may also have been designed for other purposes, as the Agency acknowledges, an agency need only demonstrate a reasonable connection between its goal of safeguarding its personnel, property, or operations and the decision that would implement that goal. See AFGE, 57 FLRA at 902-03. Nothing in Authority precedent suggests that an agency is required to show that the only basis for a particular decision or practice was to further its goal of safeguarding its personnel, property or operations.
Here, the proposal "would not require employees to be co-located or clustered with other employees and supervisors in their respective branch." Post-Petition Conference Record at 2. By allowing employees to select a seating assignment anywhere on the floor, the proposal would affect the Agency's plan of locating employees in a manner to improve employee safety. We find that the proposal is outside the duty to bargain because it would affect the agency's right to determine its internal security practices under § 7106(a)(1) of the Statute. [n4] See, e.g., NAGE, Local R7-72, 42 FLRA 1019, 1031 (1991) (proposal that would preclude agency from requiring employees to use and wear particular safety equipment found to interfere with agency's right to determine internal security practices); NFFE, Local 2050, 36 FLRA 618, 631 (1990) ("the [a]gency's decision as to the threats against which it will protect employees and the workplace constitutes an integral aspect of the [a]gency's determination of the internal security practices it will adopt for that purpose."). [n5]
The petition for review is dismissed.
Dissenting Opinion of Member Carol Waller Pope:
I disagree with the majority's conclusion that the proposal affects management's right to determine internal security practices under § 7106(a)(1) of the Statute. In this connection, the mere fact that the Agency provides some explanation as to how collocation is intended to further internal security is not sufficient to find a reasonable link between its goal of safeguarding personnel and its practice of collocation. See, e.g., IFPTE, Local 11, 32 FLRA 380, 390-91 (1988) (Authority found agency failed to establish link to internal security despite fact that agency provided explanation as to how policy furthered protection of agency's personnel and property). Further, although the Agency claims that collocation is necessary to permit managers to ensure the successful evacuation of employees, the Agency neither argues that it has established, nor provides any evidence of, a policy charging managers with that task. See AFGE, Local 2076, 47 FLRA 1379, 1381-82 (1993) (Authority rejected agency's internal security argument where, among other things, agency failed to submit documentation supporting its claim that a policy existed). In these circumstances, I would find that the Agency has not established a reasonable link between its goal of safeguarding personnel and its practice of collocating employees.
In addition, I would reject the Agency's argument that the award interferes with the right to determine its organization. In this connection, management's right to determine organization generally involves the authority to determine its administrative and functional structure, see United States Dep't of Veterans Affairs, Conn. Healthcare Sys., Newington, Conn., 57 FLRA 47 (2001), and this proposal has no effect on the Agency's authority to determine that structure.
I would find that the proposal is negotiable at the Agency's election under § 7106(b)(1) of the Statute because it concerns the methods and means of performing work. In this regard, the Authority previously has found agency policies concerning "functional grouping" of employees concerned the methods and means of performing work. See, e.g., AFGE, Nat'l Border Patrol Council, Local 2544, 46 FLRA 930, 944 (1992); NTEU, Chapter 83, 35 FLRA 398, 408 (1990); NAGE, Local R14-89, 32 FLRA 392, 401 (1988). It is undisputed that the Agency has decided to collocate employees by branch because: each branch within the Office of Regulations and Rulings issues subject-specific rulings and reference materials relevant to the various subjects are located within the branches; and the Agency views collocation as facilitative of the communication and interaction necessary for review of rulings. In these circumstances, I would find that the Agency has demonstrated that its policy of collocating employees concerns the methods and means of performing work. Because the Union's proposal interferes with that policy, I would find it negotiable at the Agency's election under § 7106(b)(1) of the Statute.
Footnote # 1 for 58 FLRA No. 164 - Authority's Decision
Pursuant to the Homeland Security Act of 2002 (Pub. L. 107-296; 6 U.S.C. § 101 et. seq.), the United States Department of the Treasury, United States Customs Service, transferred to the United States Department of Homeland Security, Customs and Border Protection. See 6 U.S.C. § 203(a)(1). There is no evidence in the record that this change has affected the Agency's relocation or the continued processing of this case.
Footnote # 2 for 58 FLRA No. 164 - Authority's Decision
Footnote # 3 for 58 FLRA No. 164 - Authority's Decision
Footnote # 4 for 58 FLRA No. 164 - Authority's Decision
There is no evidence in the record that the proposal would apply to the two individuals whose duties require them to be located on a different floor than other employees within their division. One of the individuals is an information technology contractor who, arguably, is not encompassed within the bargaining unit, which includes "primarily attorneys and paralegals[.]" Post-Petition Conference Record at 1. The other individual is the team leader for information technology employees, whose bargaining unit status is unclear. See Reply at 4. In any event, even if one or both of these individuals were included in the bargaining unit, it is not clear that they are assigned to branches, in the same manner as the employees encompassed by the proposal. Therefore, the parties' arguments with respect to collocation within branches do not apply.
Footnote # 5 for 58 FLRA No. 164 - Authority's Decision
In view of our determination that the proposal is outside the duty to bargain because it affects the right to determine internal security, we do not address the Agency's additional claims relating to other management rights. We also note that the Union makes no claim that the proposal is negotiable under § 7106(b)(2) or (b)(3) of the Statute or that it is electively negotiable under § 7106(b)(1). See, e.g., Ass'n. of Civ. Technicians, NY State Council, 56 FLRA 444, 449 (2000), reconsideration denied, 56 FLRA 868, 871 (union made only bare assertions under