DEPARTMENT OF LABOR EMPLOYMENT STANDARDS ADMINISTRATION WAGE AND HOUR DIVISION MANCHESTER DISTRICT OFFICE MANCHESTER, NEW HAMPSHIRE and LOCAL 948, NATIONAL COUNCIL OF FIELD LABOR LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

In the Matter of

DEPARTMENT OF LABOR

EMPLOYMENT STANDARDS

ADMINISTRATION

WAGE AND HOUR DIVISION

MANCHESTER DISTRICT OFFICE

MANCHESTER, NEW HAMPSHIRE

and

LOCAL 948, NATIONAL COUNCIL OF

FIELD LABOR LOCALS, AMERICAN

FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO

Case No. 01 FSIP 147

 

ARBITRATOR’S OPINION AND DECISION

    Local 948, National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO, (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, between it and the Department of Labor, Employment Standards Administration, Wage and Hour Division, Manchester District Office, Manchester, New Hampshire (Employer). After the investigation of the request for assistance, which concerns a dispute over an office relocation, the Panel directed the parties to mediation-arbitration via teleconference with the undersigned. Accordingly, on July 26, 2001, a mediation-arbitration proceeding by telephone was conducted with representatives of the parties. During the mediation phase, the parties voluntarily resolved all but one of several issues in dispute.(1) When the parties were unable to reach a complete settlement, they identified for arbitration their final offers on the remaining issue and presented oral argument on their positions. Post-hearing briefs were not requested from the parties, however, the record remained open until August 3, 2001, solely for the purpose of permitting the parties to submit floor plans from other agency offices as comparability data in support of their respective positions.(2) I have now considered the entire record in this matter, including the parties’ final offers, arguments, documentary evidence and post-hearing submissions, consistent with the ruling set forth above.

BACKGROUND

    The Employer’s mission is to engage in the civil enforcement of wage and hour laws, including the Fair Labor Standards Act, the Family Medical Leave Act, and various statutes concerning Government contracting. Employees are part of a nationwide bargaining unit consisting of approximately 9,000 employees. In the Manchester District Office, there are nine bargaining-unit positions; six are wage and hour investigators, two are support staff, and one is a wage and hour investigator, now on 100-percent official time while serving as an elected Union representative on the National Council of Field Labor Locals. The parties are covered by a master collective-bargaining agreement which is scheduled to expire on February 1, 2002.

    On behalf of the Employer, the General Services Administration (GSA) has leased larger office space for the Manchester District Office on the ground floor of a building located approximately 2 miles from the current location. As yet, the interior buildout of the new space has not been started and a date for the office move has not been scheduled. At the current facility, employees work at free-standing desks without partitions between employee work areas. The only semi-private office is occupied by the Union representative and another wage and hour investigator; this arrangement is pursuant to an agreement, dating from 1994, when the parties moved to the current space. The parties have agreed that at the new office location, the same employees will continue to occupy a semi-private office.

ISSUE AT IMPASSE

    The parties disagree over whether the floor plan for the new facility should include a second semi-private office for two more wage and hour investigators.

POSITIONS OF THE PARTIES

1. The Employer’s Position

    The Employer proposes a floor plan for the new office which would place wage and hour investigators in five individual workstation cubicles surrounded by partitions measuring up to 84 inches in height. Four cubicles would be constructed in the interior space of the office and one cubicle would have a window.(3) This floor plan includes the semi-private office measuring approximately 15 feet 10 inches by 13 feet to be shared by the Union representative and another wage and hour investigator. Essentially, the Employer contends that its floor plan proposal represents the best layout for the office because the placement of cubicles would not obstruct natural lighting for the interior space and the floor plan "fits the grid" of the building in terms of the existing heating, ventilation and air conditioning (HVAC) system, sprinklers, overhead lighting and the placement of support columns. The dimensions of all offices, cubicles, and conference and storage rooms are approximate and cannot be known with certainty until a final plan drawing is rendered by an architect. Placing wage and hour investigators in cubicle workstations is consistent with the Employer’s practice over the past 10 years with respect to every office relocation involving the Wage and Hour Division in the Northeast Region where the space has been built out to the agency’s specifications.(4) The agency has an interest in treating all wage and hour investigators in an equal and consistent manner and, therefore, employees who hold that position all should have cubicle workstations. The floor plan and workstation arrangement proposed by the Employer "fits the norm for wage and hour investigators in the North Eastern part of the country;" it is compatible with the "technological state" of modern offices.

    While the Employer does not have a policy statement that spells out the exact configuration a district office should have, the Employer is attempting to create a consistency in office settings that follows what is happening nationally. In today’s work world, cubicle workstations are viewed as "private space." While the number of offices proposed under the Union’s floor plan could fit into the square footage of the new space, there is no advantage to having two employees in an enclosed office, as the Union proposes. In this regard, there is less privacy in a semi-private office, something that ultimately could affect employee productivity; moreover, personality conflicts could develop between the co-occupants of the semi-private office which also could adversely affect productivity and a stable office environment. Cubicle workstations would afford investigators a significantly greater amount of privacy than they have in their current open-space office environment. A cubicle with partitions of up to 84 inches that is occupied by one employee offers much more privacy than a fully-enclosed office that must be shared by two individuals. There is no justification for an additional semi-private office for two wage and hour investigators because the work performed by investigators does not mandate a high-degree of security that would warrant a fully enclosed office; moreover, investigators typically spend at least 50-percent of their time in the field performing their duties so they do not have a full-time need for an office. Employees in other offices who have their workstations in cubicles are satisfied with the arrangement. It is only the Union in the Manchester District Office that is seeking a different arrangement, with little justification for it.

The Employer’s floor plan has been reviewed by professionals who have taken into consideration the external constraints of the space as well as the existing grid of the building as it concerns the HVAC, lighting, sprinklers, and the placement of columns. The Union’s plan, on the other hand, has not received professional scrutiny and it appears that its proposed layout could prevent a wheel chair from gaining access to certain parts of the office.

2. The Union’s Position

    The Union proposes in its floor plan number 3, dated July 26, 2001, to create a second semi-private office to be shared by two wage and hour investigators. This office would be located next to the other, previously agreed upon semi-private office for the Union representative and a wage and hour investigator; the dimensions for both semi-private offices would be 17 feet by 13 feet. The Union further proposes to construct in the interior space of the office three cubicles, all in a straight line, to accommodate three other wage and hour investigators. Some adjustments could be made to the floor plan to alleviate any Employer concerns about wheelchair accessibility to the space and that the floor plan was not submitted to the scrutiny of an architectural professional before it was offered as a resolution of the dispute. The Union contends that employees have a preference for semi-private offices because they "don’t want to be out on the floor;" they perceive semi-private offices as their own office space. While many district offices may have only cubicle workstations for wage and hour investigators, there are some exceptions in the Baltimore, Richmond and Wilkes Barre District Offices; contrary to the Employer’s contention, the private and semi-private offices in those district offices were built out specifically to accommodate wage and hour investigators. The Employer has not articulated a valid reason for its desire to deny employees the benefit of a semi-private office. Clearly, the new leased space is large enough to accommodate a second semi-private office for employees and the Employer has not provided any reasonable explanation why an additional one could not be constructed. The Employer has an opportunity to improve working conditions by providing this benefit to employees; however, the Employer would deny wage and hour investigators a semi-private office in order to maintain a distinction between management and rank and file employees. For the Union, this issue has become one of "respect in the workplace." If the Union’s proposed floor plan does not provide for the necessary width for aisles because of the location of a fixed column in the office space, the Union would be amenable to working with GSA to alter the floor plan so that aisle ways are wide enough for access.

    With respect to matters involving privacy, noise levels in the office, and employee productivity, cubicles provide neither privacy nor noise abatement. There is "nothing like a door" for privacy; in a semi-private office, the two employees stationed there would hear the "noise" generated only by each other. Employees stationed in cubicles, however, would be able to overhear conversations and other sounds generated by the entire office because cubicles lack doors and floor-to-ceiling partitions which keep out noise. Cubicles merely provide "the illusion of privacy." Contrary to the Employer’s claim that the work performed by wage and hour investigators does not give rise to a need for greater privacy in the office, investigators typically are in possession of confidential records which should be maintained in an office setting that provides greater privacy than that proposed by the Employer.

CONCLUSION

    Having carefully considered the parties’ arguments and evidence in this case, I shall order the adoption of a compromise solution to resolve the dispute. At the outset it must be stated that it is of significant concern to the undersigned that neither party offered the testimony of an architectural professional to address the merits of their respective floor plans. Thus, it is difficult to assess the Employer’s contention that the Union’s proposed floor plan is problematical in terms of handicapped accessibility to aisle ways or the extent to which a floor plan should conform with the so-called building "grid" to maximize the functions of the HVAC system, sprinklers and overhead lighting. In my view, the Employer has failed to demonstrate a need for cubicle workstations for employees in the Manchester District Office. In this regard, while the Employer has provided evidence that most other district offices have cubicle workstations for employees rather than semi-private or private offices, there appears to be some exceptions to that practice, notably the Baltimore, Richmond and Wilkes Barre District Offices. Furthermore, the Employer has not presented any evidence of either a policy statement or agency regulations on the configuration of district offices, for which there may be a compelling need. Moreover, the Employer does not dispute the Union’s contention that the square footage of the newly-leased space could accommodate an additional semi-private office. In light of the above, I have determined that the floor plan should include a second semi-private office. As the Union asserts, employees perceive a semi-private office as an enhancement of their working conditions and I am not persuaded that it should be denied them, particularly when there is evidence that a small number of other district offices offer either private or semi-private offices to wage and hour investigators.

    Nevertheless, because of my concern that the Union’s proposed floor plan has not been evaluated by an architectural profession to assess the feasibility of the layout, whereas the Employer’s floor plan apparently has been the subject of such scrutiny, I shall order that the Employer’s floor plan be used as a basis for creating a second semi-private office. In this regard, the Employer’s floor plan should be modified to include a second semi-private office, with the Employer to be granted reasonable latitude to determine the location of the second semi-private office. In making this determination, the Employer may find it necessary to change the location and dimensions of other offices, rooms or workstations.(5) The Employer, however, should make every effort to retain the dimensions of the bargaining-unit work areas as indicated in its floor plan. While the Union shall be permitted to have input into the redesign of the floor plan, it is not my intention to create a bargaining obligation over the modifications to the floor plan. Accordingly, the Employer shall make the final determinations on the floor plan, consistent with this decision, in order to include a second semi-private office within the layout for the Manchester District Office.

DECISION

    The parties shall adopt a compromise solution to resolve their impasse over the floor plan for the Manchester District Office. The Employer’s floor plan is to be modified to include a second semi-private office for bargaining-unit employees.

 

Donna M. DiTullio

Arbitrator

Washington, D.C.

August 24, 2001

 

1.During mediation, the parties were able to reach agreement on office furniture, the height of partitions for workstation cubicles, telephones with conference call and voice-mail capacity, office selection procedures, lighting, and radon testing for the new workspace.

2.On August 1, 2001, the Employer requested an extension of time, until August 10, 2001, to submit the floor plans; the request was granted to allow both parties the additional time. By letter dated August 10, 2001, the Union objected to a portion of the Employer’s submission which the Union contends addresses the amount of time wage and hour investigators spend in the Manchester District Office, a matter that is outside the limited purpose for which the record was held open. In essence, the Union maintains that it is prejudiced by the Employer’s submission because it does not have an opportunity to respond to the arguments and evidence. Having reviewed the Employer’s submission, and the Union’s objections thereto, the undersigned has determined to strike from the record that portion of the Employer’s submission which presents argument and evidence on the amount of time wage and hour investigators spend in their offices. While statements were made by the parties during the course of the mediation/arbitration proceeding that investigators spend a majority of their time in the field investigating cases, the Employer has attempted to submit additional argument and data in support of its position which exceeds the limited scope for which the record remained open until August 10, 2001. Therefore, I shall not consider in my deliberations that portion of the Employer’s submission which concerns the amount of time wage and hour investigators spend in their offices.

3.The Employer identified as its final offer the floor plan it submitted on July 26, 2001, during mediation/arbitration.

4.The Employer acknowledges that the District Offices in Baltimore, Maryland, Richmond, Virginia and Wilkes Barre, Pennsylvania have private and/or semi-private offices for wage and hour investigators. According to the Employer, these offices are distinguishable because when the agency moved into those facilities, for budgetary reasons the space was not specifically built out to accommodate the agency’s specifications. Rather, the agency took over the space essentially in an “as is” condition.

5.In ordering this compromise solution, it is recognized that with respect to the offices