[ v15 p902 ]
The decision of the Authority follows:
15 FLRA No. 170 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 644, AFL-CIO Union and U.S. DEPARTMENT OF LABOR, MINE HEALTH AND SAFETY ADMINISTRATION, MORGANTOWN, WEST VIRGINIA Agency Case No. O-NG-858 DECISION AND ORDER ON NEGOTIABILITY ISSUES The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and raises issues concerning the negotiability of three Union proposals. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal /1/ One workspace will be moved to the area currently designated as the storage area from the area currently designated as a 4-person work area. The remaining 3 desks in the large room will be separated by 6-foot high partitions. The Agency contends that there is no obligation to bargain over Union Proposal 1 because the proposal concerns "open workspace technology," and thus is among those matters negotiable only at the Agency's election pursuant to section 7106(b)(1) of the Statute. The same position was taken by the agency with respect to Union Proposal X in American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477, et al. and Library of Congress, Washington, D.C., 7 FLRA 578 (1982). The relevant proposal in that case required that employee work stations in open areas be separated by padded partitions. The Authority found that the agency therein had failed to show that an open space office design bore any relationship to the accomplishment or furthering the performance of work or that the partitions would interfere with the purpose for which an open space design was chosen. Consequently, the Authority concluded that, "In the absence of such showings, the partitions required by the proposal would be merely incidental to the performance of the Agency's work and would be principally related to matters affecting working conditions of employees." In the instant case, the Agency points out that the employees involved are away from their office "a preponderant amount of the time" and that the "open workspace technology provides the optimum balance between efficient operations, cost and mission accomplishment." /2/ However, this observation fails to establish the required nexus between the design of the workspace and the furtherance or accomplishment of the Agency's work. /3/ Accordingly, based upon Library of Congress and the reasons stated therein, Union Proposal 1 is within the Agency's duty to bargain. Union Proposal 3 Adequate telephones will be provided for the conduct of Government business. In agreement with the Agency, the Authority finds that Union Proposal 3, by requiring that sufficient telephones "for the conduct of Government business" be furnished, concerns the "technology of performing work" within the meaning of section 7106(b)(1) of the Statute. See American Federation of Government Employees, AFL-CIO, Local 3760 and Social Security Administration, Disability Analysis Branch, Field Assessment Office, 11 FLRA No. 93 (1983) and cases cited therein. Under section 7106(b)(1), such matters are negotiable at the Agency's election. Since the Agency has declined to bargain on the proposal, Union Proposal 3 is nonnegotiable. Union Proposal 5 Since there are no facilities to clean and calibrate equipment at the new location, the inspectors will not be held accountable for the cleanliness and accuracy of the instruments cleaned and adjusted under less than laboratory conditions. All time spent cleaning and calibrating equipment will be considered hours worked. Both parties herein agree that, historically, the employees affected by this proposal have cleaned and calibrated the equipment used in carrying out their mine inspection responsibilities. According to the unrefuted assertion of the Agency, /4/ relieving employees of responsibility for the accuracy of their testing equipment "could have a serious negative effect on the accuracy of their work products . . . . " /5/ Thus the proposal, in effect, requires negotiation on performance standards, specifically the quality of the employees' work product in terms of the accuracy of tests required to be performed. /6/ In National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), affirmed sub nom. National Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982) the Authority held that proposals seeking to prescribe performance standards were nonnegotiable because they interfered with management's rights pursuant to section 7106(a)(2)(A) and (B) of the Statute "to direct" employees and "to assign work." Consequently, Union Proposal 5, concerning the accuracy of employees' work product, is likewise outside the duty to bargain. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Union Proposal 1. /7/ IT IS FURTHER ORDERED that the petition for review as it relates to Union Proposal 3 and 5 be, and it hereby is, dismissed. Issued, Washington, D.C., August 31, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The numbers assigned to the proposals are those used by the parties. /2/ Agency Statement of Position at 2. /3/ The Agency does not challenge the Union's assertion, on p. 2 of its petition, that the storage space referenced in the proposal is "an essentially unused storage area." /4/ The Union filed no response to the Agency Statement of Position. /5/ Agency Statement of Position at 3. /6/ Pursuant to responsibility assigned by 5 USC 4302(b), the Office of Personnel Management has promulgated regulations governing performance appraisal systems. In 5 CFR 430.202, "performance standard" is defined as follows: (d) "Performance standards" are the expressed measure of the level of achievement established by management for the duties and responsibilities of a position or group of positions. Performance standards may include, but are not limited to, elements such as quantity, quality, and timeliness. /7/ In finding Union Proposal 1 within the duty to bargain, the Authority makes no judgment as to its merits.