American Federation of Government Employees, Local 1812 (Union) and Broadcasting Board of Governors, Washington, D.C. (Agency)

[ v59 p447 ]

59 FLRA No. 69

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 1812
(Union)

and

BROADCASTING BOARD OF GOVERNORS
WASHINGTON, D.C.
(Agency)

0-NG-2711

DECISION AND ORDER
ON NEGOTIABILITY ISSUES

November 18, 2003

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and Part 2424 of the Authority's Regulations. The appeal concerns three proposals. [n2]  The Agency filed a Statement of Position and a Reply and the Union filed a Response. [n3] 

      For the following reasons, we find that Proposal 1 is outside the duty to bargain and that Proposals 2 and 3 are negotiable at the election of the Agency under § 7106(b)(1) of the Statute.

II.     Proposal 1

Visitor tours of the MBC [Multimedia Broadcasting Center] will include visits to the visitor center (North Area) and views of the radio studios.

A.     Positions of the Parties

1.     Agency

      According to the Agency, "[t]he purpose of the proposal is to acquaint the public, government officials, VIPs, students and others with" the work of the Agency's "radio broadcasters." Statement of Position (Statement) at 3. The Agency claims that the proposal "directly affects" how it conducts its "public affairs program." Id. Specifically, the Agency argues that the proposal not only requires it to conduct public tours, but dictates the content of the information it provides the public.

      Based on the Union's interpretation of the proposal, the Agency claims that the proposal "focuses entirely on the Agency's message to the public[,] rather than on the working conditions of bargaining unit employees." Id. at 6. For this reason, the Agency contends that the proposal is outside the duty to bargain because it does not relate to the conditions of employment of unit employees.

      The Agency also claims that because the proposal requires it to assign an employee to conduct a tour and, particularly, to include a visit to the north area of the Visitor Center, the proposal affects management's right to assign work under § 7106(a)(2)(B) of the Statute. Statement of Position at 4.

2.     Union

      The Union explains that the purpose of the proposal is intended to ensure that the radio studios are included in any public tour. According to the Union, the Agency's plans for public tours involve a view of the television studios, but they will not include a view of the radio studios.

B.     Analysis and Conclusions

1.     Meaning of the Proposal

      By its terms, the proposal requires that tours of the MBC given by the Agency include a stop in the north area so as to provide a view of the radio broadcast studios. [ v59 p448 ]

2.     Proposal 1 Does Not Concern a Matter Pertaining to Conditions of Employment

      Section 7103(a)(12) of the Statute defines "collective bargaining," as relevant here, as the parties' mutual obligation to bargain "with respect to . . . conditions of employment . . . ." "Conditions of employment" are defined in § 7103(a)(14), with exclusions not relevant here, as "personnel polices, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions[.]"

      In determining whether a proposal concerns a condition of employment, the Authority applies the two-prong test under Antilles Consolidated Education Assoc., 22 FLRA 235, 236-37 (1986) (Antilles). Under this test, the Authority determines: (1) whether the proposal pertains to bargaining unit employees; and (2) "[t]he nature and extent of the effect of the matter proposed to be bargained on working conditions of those employees." Antilles, 22 FLRA at 237 (emphasis in original). More particularly, as stated in Antilles, "the question is whether the record establishes that there is a direct connection between the proposal and the work situation or employment relationship of bargaining unit employees." Id.

      In AFGE, Local 2761, AFL-CIO v. FLRA, 866 F.2d 1443 (D.C. Cir. 1989) (Local 2761), the United States Court of Appeals for the District of Columbia Circuit reviewed the Authority's application of the Antilles test. The court found that, under Antilles, "the Authority inquires into the extent and nature of the effect of the practice on working conditions." Local 2761, 866 F.2d at 1445. In determining whether the matter there in issue was a condition of employment, the court examined whether there was a "link" or "nexus" between that matter and workers' employment. Id. at 1447, 1449. The court found that where a matter has a "direct effect on the work relationship[,]" it concerns a condition of employment. Id. at 1449.

      The proposal requires that the Agency include a stop in the north area of the MBC for a view of the radio studios during any tours it conducts of the MBC. There is no dispute that the proposal concerns bargaining unit employees within the meaning of the first prong of the Antilles test.

      With respect to the second prong of the Antilles test, however, the Union has failed to demonstrate that the proposal has a direct connection to the employment relationship or working conditions of unit employees. Specifically, the Union has provided no evidence that viewing the radio stations as a part of any tour of the MBC would in any manner affect the working conditions of unit employees. There is no evidence, for example, that the tour stop contemplated by the proposal would result in any changes in the work being done, or the circumstances in which work is done, in the radio studios or that it would necessitate any changes in the nature of unit employees' employment relationship.

      Rather, as the Agency argues, the focus of the proposal is on the relationship between the Agency and members of the public who constitute the tour groups. Proposals that are directed at the interests of the public, even where a union is, or unit employees are, indirectly involved, do not pertain to conditions of employment. See AFGE, AFL-CIO, Local 2022, 23 FLRA 59, 61 (1986) (proposed sign welcoming public to military base on behalf of union not a matter related to conditions of employment).

      Further, the Union provides no support for its claim that the proposal would benefit employee morale. Nor does the Union provide evidence that the proposal would create increased public support for the Agency's radio operations. In any event, such a result is dependent on too many variables for the Authority to conclude that the proposal is thereby directly linked to unit employees' working conditions. See Nat'l Assoc. of Air Traffic Specialists, 6 FLRA 588, 593 n.7 (1981) (citing Abood v. Detroit Bd. of Education, 431 U.S. 209, 228 (1977) (effect of exercise of political influence on changes in conditions of employment is subject to many intervening variables). Any connection between the Agency's tours and employees' conditions of employment would be "remote and speculative." Id. See also AFGE, AFL-CIO, Local 2094 v. FLRA, 833 F.2d 1037, 1044 (D.C. Cir. 1987).

      Accordingly, we find that Proposal 1 is outside the duty to bargain because it does not concern unit employees' conditions of employment[n4] 

III.     Proposal 2

Partitions between current side by side seating will be installed. These partitions will be at least 5 feet in height.

     Proposal 3

Partitions will be erected between cubicles that face each other. These partitions will be at least 5 feet high. [ v59 p449 ]

A.     Positions of the Parties

1.     Agency

      The Agency claims that Proposals 2 and 3 are outside the duty to bargain because they concern the technology, methods, and means of performing work, matters about which the Agency is not required, but may elect, to bargain under § 7106(b)(1) of the Statute. Specifically, the Agency maintains that the lower partitions that are currently used between work stations have a technological relationship to the accomplishment of the Agency's work and are integrally related to its operations.

      The Agency asserts that news operations are conducted at a "fast pace," requiring that editors be able to see where each employee is and necessitating quick communication between editors and groups of employees and between the employees themselves. Statement at 11. The Agency argues that the higher partitions required by the proposals would "significantly interfere with the work of the office," because: (1) "[e]ditors would never know where anyone was unless they left their own desk and searched in every cubicle;" (2) "[e]ditors would not be able to pass a message [to] or ask questions [of] groups of employees;" and (3) "[c]ommunications between employees would nearly cease." Id. at 12. In addition, the Agency states that greater privacy is not necessary for the work done by its employees and that providing greater privacy would interfere with the purposes for which it currently uses lower partitions.

2.     Union

      According to the Union, with respect to Proposal 2, the current configuration of employee work areas involves two work areas side-by-side with no divider. The Union explains that the requested partition would allow some privacy for employees. The Union also explains that employees currently use the walls of cubicles to post such items as calendars or pictures and the proposal would continue that practice.

      As to Proposal 3, the Union explains that, currently, cubicles that face each other are divided by partitions that are only 44 inches high. According to the Union, 5 foot partitions would provide employees greater privacy.

B.     Analysis and Conclusions

1.     Meaning of the Proposal

      Proposals 2 and 3 provide for the Agency to use partitions between employee workstations and prescribe the height of those partitions.

2.     Proposals 2 and 3 Concern Matters that Constitute Methods and Means of Performing Work within the Meaning of § 7106(b)(1) of the Statute

      The Agency claims that Proposals 2 and 3 are negotiable only at its election because they concern a method or means of performing its work under § 7106(b)(1) of the Statute.

      The Authority has established a specific test for determining whether a matter concerns the methods and means of performing work under § 7106(b)(1). Under that test, it must be shown that the proposal concerns a "method" or "means" as defined by the Authority. [n5]  It must also be shown that: (1) there is a direct and integral relationship between the particular method and 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., AFGE, Council of GSA Locals, Council 236, 55 FLRA 449, 452 (1999), petition for review denied sub nom. AFGE, Council of GSA Locals, Council 236 v. FLRA, Case No. 99-1244 (D.C. Cir. March 7, 2000).

      The Agency contends that, under § 7106(b)(1) of the Statute, it has the right to decide whether to use partitions, or the size of any partitions chosen, in configuring its work space. The disputed proposals require the Agency to use partitions to separate employee work stations. The proposals also require that those partitions be at least 5 feet (60 inches) high.

      The Agency asserts that the partitions that it currently uses to separate employee work stations--44 inch-high partitions between cubicles that face each other, and 42 inch-high partitions between side-by-side cubicles--facilitate its news broadcast operations. Specifically, the Agency states that its news operations are [ v59 p450 ] fast-paced and rapidly changing. The Agency maintains that lower partitions allow supervisors and editors to determine whether broadcast personnel who are scheduled to go on the air are at their work stations, permits editors to conduct quick conferences among personnel at a number of work stations all at once, and makes it possible for employees to talk directly to each other without having to leave their work stations. In sum, the Agency explains, the lower partitions are more commensurate with the needs of its news broadcast operations because they make it possible to respond more quickly to the ever-changing flow of the news. The Agency contends that the 5 foot partitions required by the proposals would impede the ability to supervise and communicate made possible by the lower partitions.

      The Agency's explanation of the function of the lower partitions in its broadcasting operations establishes that those partitions are a tool or device that is employed for particular purposes in those operations and that they concern the method by which the Agency conducts its broadcasting operations. That is, the Agency has shown that the proposals concern what it uses to perform its broadcasting work and how it goes about performing that work. Thus, by requiring the use of partitions and specifying the height of the partitions to be used, the proposals concern the methods and means whereby the Agency accomplishes its operations.

      Further, the Agency has shown that there is a direct and integral relationship between the use of the lower partitions and the accomplishment of its work, namely, those partitions facilitate the supervision of, and the rapid communication required by, its news broadcast operations. Finally, the Agency has demonstrated that the higher partitions called for by the proposals would directly interfere with the mission-related purposes for which the lower partitions are employed. As there is no evidence to the contrary in the record, the Agency has established that Proposals 2 and 3 concern the methods and means of performing its work within the meaning of § 7106(b)(1) of the Statute.

      Accordingly, we find that Proposals 2 and 3 concern the methods and means of performing work within the meaning of § 7106(b)(1) of the Statute. For this reason, it is unnecessary to address whether the proposals also constitute a matter related to the technology of performing work within the meaning of § 7106(b)(1) of the Statute. We therefore conclude that the proposals are negotiable only at the election of the Agency.

IV.     Order

      We dismiss the petition for review as to Proposal 1. Proposals 2 and 3 are negotiable only at the election of the Agency.


Opinion of Chairman Cabaniss, concurring as to the result:

      As I noted in my concurring opinion in AFGE, Local 3129, SSA General Committee, 58 FLRA 273, 276 (2002), I would find that the portion of the Authority's methods and means test requiring a showing that the proposed method or means interferes with the mission-related purposes for which that method or means was adopted is not warranted by the terms of § 7106(b)(1) of the Statute. In my view, if an agency has elected not to bargain over a proposal on grounds that it is a § 7106(b)(1) matter, all it must do to demonstrate that the proposal is permissively negotiable is to show that it constitutes a matter covered by § 7106(b)(1). That is where the inquiry ends, as there is no warrant under the literal terms of § 7106(b)(1) for further analysis.

      Applying that analytical framework to Proposals 2 and 3 in this case, I would reach the same outcome as the majority. I would find that the use of partitions to separate employee workstations and the height of those partitions constitutes a method and means of performing the Agency's broadcasting work. Consequently, I agree with the majority that the proposals are negotiable at the election of the Agency.



Footnote # 1 for 59 FLRA No. 69 - Authority's Decision

   Chairman Cabaniss' concurring opinion is set forth at the end of this decision.


Footnote # 2 for 59 FLRA No. 69 - Authority's Decision

   The appeal originally concerned five proposals. However, during the post-petition conference, the Union modified two proposals and the Agency withdrew its allegation of nonnegotiability as to them. Consequently, those proposals are no longer before the Authority. See Record of Post-Petition Conference at 2-3.


Footnote # 3 for 59 FLRA No. 69 - Authority's Decision

   The Authority issued a Show Cause Order to the Union requiring it to demonstrate why its Response should not be dismissed as untimely filed. The Union filed a timely response to the Show Cause Order, conceding that it miscalculated the time limits, but arguing that no harm would result to the Agency from considering the Response since the Agency was able to file a Reply. The Union did not request a waiver of expired time limits, nor did it present any evidence of extraordinary circumstances warranting such a waiver within the meaning of § 2429.23 of the Authority's Regulations. Consequently, we find that the Union's Response was untimely filed and we will not consider that Response or the Agency's Reply thereto. See AFGE, Local 1917, 55 FLRA 228, 228 n.1 (1999).


Footnote # 4 for 59 FLRA No. 69 - Authority's Decision

   In view of this conclusion, it is unnecessary to address the Agency's claims that the proposal affects management's right to assign work under § 7106(a)(2)(B) of the Statute.


Footnote # 5 for 59 FLRA No. 69 - Authority's Decision

   In this regard, the Authority construes the term "method" to refer to the way in which, or how, the agency performs its work. See, e.g., IFPTE, Local 49, 52 FLRA 813, 818 (1996). The term "means" refers to "any instrumentality, including an agent, tool,