DEPARTMENT OF EDUCATION OFFICE FOR CIVIL RIGHTS KANSAS CITY, MISSOURI and ED LOCAL 3892, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of

DEPARTMENT OF EDUCATION

OFFICE FOR CIVIL RIGHTS

KANSAS CITY, MISSOURI

and

ED LOCAL 3892, AMERICAN

FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO

Case No. 01 FSIP 203

DECISION AND ORDER

    ED Local 3892, 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 (Statute), 5 U.S.C. § 7119, between it and the Department of Education, Office for Civil Rights (OCR), Kansas City, Missouri (Employer).

    Following an investigation of the request for assistance, arising from negotiations over an office move,(1) the Panel determined that the dispute should be resolved through an informal conference with a Panel representative. The parties were advised that if no settlement was reached, the Panel representative would report to the Panel on the status of the dispute, including the parties’ final offers and her recommendations for resolving the issues. After considering the report, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

    Pursuant to the Panel’s determination, Supervisory General Attorney Ellen J. Kolansky met with the parties on November 15, 2001, at the Panel’s office in Washington, D.C. When the parties failed to settle their dispute, they each submitted their final offers, the Employer submitted a statement addressing the Panel’s jurisdiction, and both submitted summary statements of position; the Union responded to the Employer’s position on jurisdiction in its summary statement. Mrs. Kolansky has reported to the Panel, and it has now considered the entire record.

BACKGROUND

    The Department’s mission is to assure access to equal educational opportunity and to supplement and complement the efforts of various state and local educational entities. The OCR ensures that recipients of funds distributed by the Department of Education do not engage in discrimination based on race, age, sex, and disability. The Union represents approximately 38 bargaining-unit employees who work in the OCR in Kansas City as attorneys (10 at grades GS-11 through -14), equal opportunity specialists (EOS) (19 at GS-11 through -13), program analysts (2 at GS-12) investigators (2 at GS-7 and -9), and in clerical and program assistant positions (5 at GS-6 and -7).(2) The national-level master collective bargaining agreement (MCBA), dating from 1995 and covering 2,959 bargaining-unit employees, has expired; the parties at the national-level were engaged in negotiations over a successor agreement, but the negotiations were suspended at the end of calendar year 2000.

ISSUE AT IMPASSE

    The parties disagree over the priorities that are to be applied for selecting private offices and cubicles.

POSITIONS OF THE PARTIES

1.  The Employer’s Position

    The Employer proposal reads:

All individuals currently assigned offices will maintain offices at the Ward Parkway location. The order of future non-manager office assignments will be: Attorneys (all levels)*; GS-13 Equal Opportunity Specialists [EOS]; GS-12 Equal Opportunity Specialists; all remaining offices and work spaces will be assigned by grade. Selection of offices/space will be based on grade and Federal Service seniority.

*The agency maintains that attorneys are a functional group and office assignments are integral to the methods and means of performing the duties of the position.

Preliminarily, insofar as "the Union’s proposal would result in OCR attorneys . . . not being assigned to private offices," it concerns a "means" of performing work under 5 U.S.C. § 7106(b)(1) over which it does not elect to bargain. In particular, placing attorneys in private offices "has a direct and integral relationship to meeting agency operational needs and mission.(3) " Under FLRA case law, the particular "means" need not be "indispensable" to the accomplishment of the mission. Instead, "it need only be a matter that is ‘used to attain or make more likely the attainment of a desired end’" or used by the agency for the accomplishing or furthering of the performance of its work.(4) In OCR, attorneys, "regardless of grade," conduct negotiations with the recipients, review and hold meetings with EOSs on their teams, and often speak with recipients’ attorneys; such activities, which require confidentiality, make a private office an essential part of meeting mission needs. Furthermore, "a compelling argument can be made that attorneys should be considered a ‘functional group’ within Kansas City OCR.(5) " Although this case "does not involve the physical location . . . attorneys as a group perform unique duties and responsibilities, the accomplishment of which is facilitated by this group being assigned to private offices." Consistent with this belief, the Acting Deputy Assistant Secretary for OCR wrote to the Deputy Secretary of Education in November 2000 asking for approval of 26 offices "in the new building . . . to ensure that attorneys and senior investigators would maintain private offices."

    Addressing the merits of the case, in the Kansas City OCR, attorneys have occupied enclosed office space since the creation of the Department of Education in 1980. The proposal ensures the continuation of that practice both for attorneys and higher graded EOSs.(6) Even though bargaining was conducted over office seating practices in 1998 and 2000, the practice remained unchanged. All regional Offices for Civil Rights in the western and mid-western parts of the United States seat attorneys in enclosed offices. In the Kansas City region, a survey reveals that attorneys in 12 other Federal, 2 Missouri State, and 5 Missouri and Kansas County and Municipal agencies, work in private offices. To compete in this "highly competitive market for outstanding attorneys" and to retain attorneys, the current practice must be maintained. Because "the Department of Education has very limited flexibility in the pay it offers . . . comparability in working conditions is critical."

    The Union’s proposal would reverse this longstanding practice. Under the limited grandfather clause the Union proposes, at least two more recently hired attorneys (Summer 2001) will lose their private offices immediately following the move, and attorneys hired in the future might not be seated in private offices. The Union has not shown that the current practice has had a negative impact on morale or been "inherently unfair." In addition to causing the functional problems discussed above, the seating change would "create disharmony in the workforce."

    b. The Union’s Position

The Union proposes that:

I. All employees of OCR Kansas City that were on board and had an office as of January 1, 2001, shall have offices in the new location.

II. The method for distributing offices/space and selecting offices including filling vacancies in offices/space and selecting offices/space shall be by seniority and grade according to the following order: *1. GS-14's by seniority; *2. GS-13's by seniority; *3. GS-12's by seniority; *4. All remaining space by seniority among those in the same grade.

III. This agreement will expire on October 1, 2005, unless the matter is superceded by the successor MCBA.

Since the 1995 reorganization, employees have been assigned to one of four case resolution teams, consisting of EOSs, attorneys, and support staff. The Union’s proposal, which "gives the best opportunity for investigators as well as attorneys to have offices," recognizes that, under the team concept, attorneys and EOSs "often work closely on investigations." The assignments handled by both investigators and attorneys would benefit from private offices, if that were "physically" and "economically feasible.(7) " However, a private office is not, as the Employer argues in its jurisdictional position, "an integral component of accomplishing the duties of the [attorney] position." Instead, "the making of seating assignments is a mandatory subject of bargaining." That most OCR offices in the eastern United States (6 of 12 OCR regional offices nationwide) seat attorneys in cubicles, or in a mixture of cubicles and enclosed offices, substantiates the view that assigning attorneys to private offices does not constitute a "means" of performing work. Nor does the Employer’s survey of other offices in the Kansas City region prove its point. In its presentation of the survey data, the Employer does not clarify "how many of these government offices give employees other than attorneys private offices." If it were shown that those employers assign private offices to all employees, the Employer’s comparability data would prove nothing. Under the Union’s proposal, "offices [would be] available to each team to use when there is a need for a team member to have privacy." For example, if an office was assigned to an EOS, the attorney on the team would be able to use the office or the team conference room for calls that require privacy.

    The grandfather clause appropriately recognizes that long-time employees should retain their offices, and is consistent with bargaining-unit employees’ concerns expressed in the September 8, 2000, letter from a senior staff attorney, and the attached petitions. Regarding the cut-off date in the grandfather clause, it would exclude the two newest attorneys who have only occupied enclosed offices since mid-summer; the Union filed an unfair labor practice (ULP) charge over the Employer’s placing these employees in private offices without first bargaining on their seating assignments. During the informal conference, the parties’ disagreement over whether the two most recently-hired attorneys should continue to retain private offices prevented them from reaching a complete settlement.

    The Employer has provided no evidence establishing that assigning offices to both EOSs and attorneys will affect attorney recruitment and retention. The Employer’s prediction that the Union’s proposal will harm morale is fallacious as well; "a fair, equitable, and understandable" method for making office and space assignments instead "will have the most beneficial effect on morale." The selection procedure the Union proposed will "remedy past procedures which made it difficult if not impossible for EOSs to receive offices although their need for them was similar to that of attorneys, especially in the team environment."

CONCLUSIONS

    Having carefully considered the evidence and arguments presented by the parties, we are persuaded that they should adopt a modified version of the Union’s proposal to resolve their dispute over the priorities for selecting private offices and cubicles. The wording incorporates the terms of a tentative settlement agreement discussed by the parties during the informal conference, and addresses employees’ need for privacy. (8) In general, the parties are in accord that office and space assignments should be based on seniority, applied within each grade, with the most senior employee in the highest grade selecting first. They also agree about the fairness of permitting employees who have occupied enclosed offices for a number of years to retain such assignments after the move. However, they differ over whether attorneys constitute a separate group within the bargaining unit, who should have the highest priority for choosing office seating, and over the Union’s proposed grandfather clause which would exclude the two most recently-hired attorneys from the protections of the clause.

    Initially, we find that because attorneys and EOSs perform similar work separately and together, and because that work requires a measure of privacy, the current practice should be altered. Regardless of whether employees occupy an attorney or an EOS position, they should compete for vacant offices and cubicles based on seniority within their particular grades. With respect to the element of privacy, we conclude wording should be adopted to ensure that, for example, when tasks require privacy, employees (EOSs and attorneys) would be free to use another team member’s private office or the team’s assigned conference room. In our view, such measures should meet the performance needs of both groups of employees, thereby ensuring that operational goals are met.

    As to the grandfather clause proposed by the Union, the record developed by the parties reveals that for over 20 years the practice at the Kansas City OCR has been to assign attorneys and investigators private offices. We believe that grandfathering the practice for all employees currently occupying offices is the fairest approach. Therefore, we shall order that the Union’s proposed grandfather clause be modified to delete the cut-off date. This takes into account the existing office practice up to the date of this decision so that all employees now assigned to private offices will also have them at the Ward Parkway location. Regarding the expiration date the Union proposes for the seating selection procedure, since the Employer raises no objections, it also shall be included in the provision adopted today.

ORDER

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel, under 5 C.F.R. § 2471.11(a) of its regulations, hereby orders the following: 

I. All employees of OCR Kansas City who were on board and had an office at the current North Executive Hills Boulevard location shall have offices in the new Ward Parkway location.

II. The method for distributing offices/space and selecting offices including filling vacancies in offices/space and selecting offices/space shall be by seniority and grade according to the following order: 1. GS-14's by seniority; 2. GS-13's by seniority; 3. GS-12's by seniority; 4. All remaining space by seniority among those in the same grade.

III. This agreement will expire on October 1, 2005, unless the matter is superceded by the successor MCBA.

IV. Nothing in this provision shall prohibit the Employer from ensuring the availability of private space for employees when privacy is necessary to perform specific tasks.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

December 17, 2001

Washington, D.C.

 

1. The offices of the Department of Education are scheduled to move from North Executive Hills Boulevard to Ward Parkway in October 2002.

2. Currently, private offices are occupied by 7 managers and supervisors, an administrative assistant, a visually impaired employee who uses “noisy” equipment (the office, in lieu of a cubicle, is a reasonable accommodation), 10 attorneys, and 7 EOSs.

3. The Employer cites 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, 351-354 (1993) (Fort Hood Exchange) (Proposal 5) (where the FLRA held a proposal for a room to be found or built at the post exchange was a method or means of performing work and, therefore, nonnegotiable). In Fort Hood Exchange, the FLRA found a “direct and integral relationship” between the proposed room and the accomplishment of the mission of the Agency (part one of means test). In addition, it found that the union’s proposal would “directly interfere” with the mission-related purpose for which the employer located various offices and functions at the exchange (part two of means test). A “means of performing work” is defined as “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. at 343.

4. American Federation of Government Employees, AFL-CIO, Local 2441 v. Federal Labor Relation Authority, 864 F.2d 178 (D.C. Cir. 1988) (where the court upheld the FLRA’s dismissal of an unfair labor practice charge over the employer’s refusal to bargain over the substance of its uniform changes because they concerned a means of performing work).

5. The Employer cites American Federation of State, County and Municipal Employees, Local 2910 and Library of Congress, 19 FLRA 1180 (1985) and New York Council, Association of Civilian Technicians v. FLRA, 757 F.2d 502, 509-10 (2d Cir. 1985).

6. At the informal conference, the Employer submitted a letter dated September 8, 2000, from a senior staff attorney to an AFGE National Vice-president asking that he “intervene” in the negotiations over the move because of “the Local President’s failure to fairly represent the interests of Kansas City AFGE bargaining-unit members” in maintaining their working conditions, private offices. Appended to the letter are two petitions signed by a total of 28 bargaining-unit employees opposing “any proposal that would reduce the number of private offices” following the move.

7. A November 2000 letter requesting approval of 26 private offices for the Ward Parkway location substantiates this view. In the letter, the Acting Deputy Assistant Secretary