[ v24 p842 ]
The decision of the Authority follows:
24 FLRA No. 81 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL COUNCIL OF SOCIAL SECURITY FIELD OFFICE LOCALS Union and DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION Agency Case No. 0-NG-1076 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of thirteen Union proposals. /1/ II. Proposal 1 -- Part D.l. Every employee working on a VDT (VDT Display Terminal) shall be required to take a rest break away from his or her machine; such breaks to be for 15 minutes, in addition to regularly scheduled breaks, and shall occur after every hour of work on the terminal. A. Positions of the Parties The Agency contends that the proposal violates its right under section 7106(a) to assign work and to determine when the work will be performed. The Union contends that the proposal does not concern the assignment of work. It also contends that the proposal is "essentially an arrangement by which the Employer's decision to institute new technology would be applied." B. Conclusion and Analysis Proposal 1 is within the duty to bargain. We find that for the reasons which follow the proposal is not inconsistent with applicable laws and Government-wide regulations governing rest periods or with management's rights under the Statute. The Agency relies on the Authority's decision in National Federation of Federal Employees, Local 1263 and Defense Language Institute, Foreign Language Center, Presidio of Monterey, California, 7 FLRA 723 (1982) to support its claim that the proposal is not negotiable. Such reliance is misplaced. In that case the proposals held nonnegotiable allocated specific amounts of time to accomplish particular duties. In contract, the proposal in this case does not speak to whether work will be performed, what work will be performed, or when it will be performed -- this proposal is only concerned with securing periodic rest breaks for employees who management assigns to work at video display terminals. In American Federation of Government Employees, AFL-CIO, Local 3511 and Veterans Administration Hospital, San Antonio, Texas, 12 FLRA 76, 84-88 (1983), the Authority held a proposal requiring that certain employees "will be given two uninterrupted rest periods during each eight hour tour of duty" to be within the duty to bargain. It found that (1) granting rest periods is a matter within an agency's discretion; (2) employees remain in a duty status during their rest periods; and (3) management therefore retains the right to assign work to them during their rest periods under section 7106(a)(2)(B). Similarly, in American Federation of Government Employees, Local 3342, AFL-CIO and Department of Health and Human Services, Social Security Administration, 19 FLRA No. 124 (1985), the Authority held that scheduling breaks to which employees are entitled based upon the parties' agreement is likewise within the duty to bargain. In the present case, the Agency did not indicate that it would be unable to assign VDT work during the rest periods or that non-VDT work did not exist. Therefore, if workload requires, the Agency can assign VDT work during the rest periods or assign non-VDT work -- for example, filing -- during the rest periods. Compar American Federation of State, County and Municipal Employees, Local 2477, AFL-CIO and Library of Congress, 23 FLRA No. 27, slip op. at 4-5 (1986) (proposal would preclude agency from assigning work during clothes changing period.) Thus, the proposal in this case bears no material difference from those previously held negotiable in the cited cases. Accordingly, in light of that precedent, we find Proposal 1 to be within the duty to bargain. III. Proposals 2 through 12 Proposal 2 -- Part E.1. Adjustable chair, foot rests and tables to allow for adjustment of individual machines to suit each operator shall be available to provide optimum comfort for heights, back and tension and the minimum amount of physical stress for each operator. Chairs with full length and half length arm rests as well as chairs without arm rests shall be provided. Proposal 3 -- Part E.2. The above furniture will be adjustable to the extent that each employee will be able to achieve a .2m knee clearance between seat and table, maximum viewing distance from screen of .7m, screen at approximately right angles to line of sight, keyboard at approximately .7m above ground and can change arm rest style. Proposal 4 -- Part E.3. Dimmer switches will be installed so the VDT operator can adjust the illumination from 1600 lux to 300 lux as needed. Proposal 5 -- Part E.5. Workstations should be adjustable so that while typing the angle of the forearms is 90 to 100 degrees. Proposal 6 -- Part E.6. VDT workstations should be adjustable to accommodate the 5th and 95th percentiles. Proposal 7 -- Part E.8. All working surfaces and the paneling around the workstation should be low reflecting. Proposal 8 -- Part E.9. Each VDT shall be provided with radiation protection shields. Equipment that is already in place must be inspected and fitted with such shields. Proposal 9 -- Part E.12. Ionizing radiation levels of the VDT'S shall not exceed .5 millirems per hour when measured at 2" from the screen. Proposal 10 -- Part E.13. Each VDT shall have an effective glar shield. Proposal 11 -- Part E.16. Terminals shall not be arranged so as to direct the primary heat exhausts, without intervening ducts walls or insulation, within four (4) feet of the place where any person is stationed for periods of time. Proposal 12 -- Part E.18. The noise of printers used in the offices will not exceed 60 decibels at any point in the office. A. Positions of the Parties The Agency contends the proposals involve the technology of performing work under section 7106(b)(1) and are therefore negotiable only at its election. The Agency also contends that it must first determine that a health hazard exists before such special equipment can be purchased citing Department of the Army, Ohio River Division, Corps of Engineers -- National Federation of Federal Employees, Local No. 892, 63 Comp. Gen. 278 (1984). In this regard, it is apparently claiming that its discretion to purchase the equipment covered by the proposals may be limited by standards promulgated in the cited Comptroller General (CG) decision. The Union contends that the proposals do not interfere with the VDT technology the Agency has chosen for the new claims modernization process. It also contends the proposals provide an "appropriate arrangement for employees affected by the VDT'S." B. Conclusion and Analysis Proposals 2 through 12 are within the duty to bargain. As discussed below, the proposals are incidental to and not determinative of the VDT technology adopted by the Agency for the performance of its work. They are principally related to matters affecting the working conditions of employees using the VDT'S but do not interfere with the use of that technology or the purpose for which it was adopted. The proposals therefore would not interfere with the Agency's right to determine the technology of performing its work within the meaning of section 7106(b)(1). 1. The proposals do not directly interfere with management's right to determine the technology used to perform its work within the meaning of section 7106(b)(1). To sustain a claim that a proposal concerning conditions of employment is negotiable only at the election of management because it directly interferes with management's right to determine the technology used in performing its work, an agency must establish: (1) the technological relationship of the proposal to accomplishing or furthering the performance of the agency's work; and (2) how the proposal would interfere with the purpose for which the technology was adopted. In the absence of such showings, the proposal is considered incidental to the performance of the agency's work and principally related to matters affecting the working conditions of employees. It is, if consistent with applicable laws and regulations, within the duty to bargain. American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477 and Library of Congress, Washington, D.C., 7 FLRA 578, 584 (1982), enforced as to other matters sub nom. Library of Congress v. Federal Labor Relations Authority, 699 F.2d 1280 (D.C. Cir. 1983). The Authority has previously found that similar equipment related to matters affecting the working conditions of employees. See Social Security Administration, Office of Hearings and Appeals, Region II, New York, New York, and American Federation of Government Employees, AFL-CIO, Local 1760, 19 FLRA No. 47 (1985) (Proposal 16-concerning arrangements for isolating word processing equipment that makes excessive noise.) To support its claim that the proposals are nonnegotiable, the Agency relies on the Authority's decisions in: American Federation of government Employees, Local 644, AFL-CIO and U.S. Department of Labor, Mine Health and Safety Administration, Morgantown, West Virginia, 15 FLRA 902 (1984). National Federation of Federal Employees, Council of Consolidated Social Security Administration Locals and Social Security Administration, 13 FLRA 422 (1983); and American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477 and Library of Congress, Washington, D.C., 7 FLRA 578 (1982). The Agency implies that these cases establish that a proposal requiring an agency to provide employees with any specified equipment is determinative of the "technology of performing work" within the meaning of section 7106(b)(1). Such a generalization misstates the Authority's holdings in the cited cases. In Mine Health and Safety Administration and in Social Security Administration, the proposals which the Authority found interfered with management's right to determine the technology of performing work each expressly required the agency to provide equipment which was part of the technical method of performing the agency's work -- telephones in the former and calculators with memory and percentage functions in the latter. In Library of Congress the Authority found a part of Proposal 9 concerning the agency's choices of equipment or facilities to be drafted so broadly as to require negotiations over all equipment and facilities, including those involving the technical method used by the agency for performing its work. The Authority specifically stated in that decision, however, that a proposal focusing on particular equipment which did not constitute part of the technical method used by an agency for accomplishing its work would be within the duty to bargain. In the present case, the Agency has not established that a technological relationship exists between the proposed equipment standards and arrangements and performing the Agency's work. Second, it has not established in any event that such standards and arrangements if agreed upon would interfere in any way with the purpose for which the Agency has adopted VDT technology to perform its work. Accordingly, it follows under Library of Congress that the Agency has not established that the proposals directly interfere with its right to determine the technology of performing its work. 2. Comptroller General decisions cited by the Agency do not render the proposals nonnegotiable. The Agency claims but has not established, nor is it otherwise apparent, that under Comptroller General decisions the Agency is without discretion to comply with the proposals, if agreed upon. An agency bears the burden of creating a factual record sufficient for the Authority to resolve the negotiability dispute. National Federation of Federal Employees, Local 1167 v. Federal Labor Relations Authority, 681 F. 2d 886, 891 (D.C. Cir. 1982), aff'g National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1984). Under the Comptroller General decision cited by the Agency, it is clear that personal or special equipment may be purchased if the criteria established by the Comptroller General are met. Ohio River Division, 63 Comp. Gen. at 280-81. That is, the Agency has some, if not total discretion in such matters. The lack of total discretion to implement a proposal is not a basis for finding an otherwise negotiable proposal outside the duty to bargain. Lacking total discretion, the Agency's duty to bargain extends to such matters as are within its discretion. /2/ American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 8 FLRA 409, 411 (1982). Moreover, the Comptroller General has set forth criteria for determining circumstances in which an agency could purchase personal equipment in the absence of specific statutory authority. See Secretary of War, 3 Comp. Gen. 433 (1924). For application of the criteria see also Secretary of the Interior, 45 Comp. Gen. 215 (1965) and Ohio River Division, 63 Comp. Gen. at 281. IV. Proposal 13 -- Part E.19. The indoor temperature in the office shall not fall below 65 degrees and in hot weather, adequate ventilation and air conditioning will be provided. A. Positions of the Parties The Agency contends that the proposal conflicts with the parties' National Agreement, Article 9 -- Section 8 (Temperature Conditions). It contends that the National Agreement's procedures should be used to resolve issues about the work site's temperature. The Union contends that the National Agreement provision does not waive its right to negotiate appropriate arrangements and procedures for a mid-term change in technology. B. Conclusion and Analysis The proposal is within the duty to bargain. In Internal Revenue Service, Chicago, Illinois and National Treasury Employees Union (NTEU) and NTEU, Chapter 95, 9 FLRA 648, 651 (1982), the Authority found that the correction of heating and air conditioning problems in office areas affected the working conditions of employees and is within the duty to bargain under the Statute. In the present case, the only argument raised by the Agency is that negotiations on the proposal are barred by a master agreement. The record in this case fails to provide any basis for substantiating the Agency's assertions. Further, to the extent that there are factual issues in dispute between the parties concerning the duty to bargain in the specific circumstances of this case, these issues may be resolved in other appropriate proceedings. See American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters, 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 1984). In addition, the proposal is not inconsistent with Government-wide regulations concerning the temperature in general office space. See 41 CFR section 101-20.116-3 (1986). V. Order The Agency must bargain upon request, or as otherwise agreed to by the parties, concerning Proposal 1 through 13. /3/ Issued, Washington, D.C. December 24, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) We will not further consider in this decision three additional proposals contained in the petition for review. The Union withdrew proposals on Part 3.7. and Part E.17. and the Agency withdrew its allegation of nonnegotiability on Part E.10. (2) Chairman Calhoun agrees with this analysis in this case. He believes, however, that there is an affirmative obligation to examine not only whether and to what extent an agency has discretion in a matter, but also to weigh the interests of the parties and all related policy considerations. Members Frazier and McKee adhere to the view expressed in the majority opinion in American Federation of Government Employees, AFL-CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA No. 42 (1986) (Chairman Calhoun Dissenting), that: "It is well settled that matters which are conditions of employment of employees in a bargaining unit and are within the discretion of the agency involved are within the duty to bargain." (3) In finding these proposals to be within the duty to bargain, the Authority makes no judgment as to their merits.