46:0211(19)NG - - NTEU and Treasury, IRS, Laguna Niguel District - - 1992 FLRAdec NG - - v46 p211



[ v46 p211 ]
46:0211(19)NG
The decision of the Authority follows:


46 FLRA No. 19

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

LAGUNA NIGUEL DISTRICT

(Agency)

0-NG-2047

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

October 22, 1992

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of one proposal, which addresses the location of certain employee workstations. For the following reasons, we find that the proposal is negotiable.

II. Proposal

Employees assigned to the computer room will be given the option of returning to work[]stations in the ISD space (currently located in Room 3501) as work stations become available.

III. Positions of the Parties

A. Agency

The Agency argues that the Union's petition for review should be dismissed because the Union failed to serve a copy of the petition on the Agency at the time it filed the petition with the Authority. The Agency argues that, although the Union subsequently complied with an Authority order to serve a copy of its petition on the Agency, "failure to serve a party at all within the regulatory time limits is a fatal, substantive deficiency rather than a technical deficiency which the Authority can allow the Union to correct." Statement of Position at 8.

The Agency also contends that the petition for review should be dismissed because it involves contract interpretation. In this connection, the Agency asserts that the parties' current collective bargaining agreement provides that, during mid-term bargaining, no new proposals may be made after the first day of negotiations absent mutual agreement. The Agency claims that it was not until after the first formal negotiation session that the Union raised an issue as to affected employees' unilateral right to return to space outside the computer room. According to the Agency, because it never agreed to consider the Union's new proposal, it has no duty to bargain over it.

As to the negotiability of the disputed proposal, the Agency argues that the proposal directly interferes with its right under section 7106(b)(1) of the Statute to determine the methods and means of performing work. In this respect, the Agency notes that two computer assistants in its Operations Branch are responsible for, among other things, maintaining daily and monthly backup tapes and adding/deleting users on the computer system. The Agency states that "[a]ll of these responsibilities are performed in the computer room." Statement of Position at 3-4. The Agency also notes that, although the two computer assistants perform 80 percent of their work in the computer room, they previously had workstations outside the computer room which were not utilized when they were in the computer room. According to the Agency, the dispute in this case arose when, as a result of hiring two new employees, management decided to move the computer assistants "permanently into the computer room and release their desk space . . . for the new hires." Id. at 4.

The Agency argues that because the duties of the computer assistants are "directly and integrally linked to the equipment that is in the computer room[,]" the duties "cannot be fulfilled outside the computer room." Id. at 15. In addition, the Agency notes that each computer assistant backs up the other. According to the Agency, "the grouping of the two computer assistant[s] . . . in a work area when they must work to accomplish their job is a functional grouping of these employees." Id. at 15-16.

The Agency contends that, by allowing the computer assistants to return to workstations outside the computer room if such workstations became available, the proposal would require "management to dismantle their workstations [in the computer room] or place other employees in the computer room who have no job duties in that room . . . ." Id. at 15. The Agency argues that the proposal would "totally obviate any right of management to keep [the computer assistants] functionally grouped." Id. at 16. The Agency concludes that, as it has "demonstrated the direct and integral relationship between the location of these employees and the accomplishment of the functions of the [Agency]," the proposal conflicts with its right to determine the methods and means of performing work. Id. at 16-17.

B. Union

The Union disputes the Agency's claim that its petition should be dismissed because it was not properly served on the Agency head. The Union notes that it complied with the Authority's order to serve the Agency head within the time limits established by the Authority and argues that, as "the Agency has plainly been notified of the Union's petition . . . and timely filed a response[,] . . . to claim some type of prejudice is . . . totally without basis." Reply Brief at 9. The Union also disputes the Agency's claim that the Union's petition should be dismissed because it involves contract interpretation. According to the Union, as the Agency "has clearly and unequivocally maintained that the . . . proposal interferes with its management's right to determine the methods and means of performing the work[,]" there is a "negotiability dispute [] appropriate for resolution by the Authority." Id. at 13.

Next, the Union disputes the Agency's contention that the proposal directly interferes with management's right to determine the methods and means of performing work. In this connection, the Union "concedes that the employees' duties require them to spend approximately 80% of their time in the [computer room]." Id. at 15. According to the Union, the issue is whether the affected employees "could have a [workstation] . . . outside the computer room where they carry out the remaining 20% of their duties." Id. The Union asserts that the proposal "would not require the Agency to relocate computer equipment" and would not "modify the manner or even the location of where computer assistants would carry out their computer functions in the computer room." Id. at 15, 17. As such, the Union maintains that the proposal does not directly interfere with the Agency's right to determine its methods and means of performing work.

Finally, the Union argues that, if the proposal interferes with the Agency's right to determine the methods and means of performing work, then the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. In this respect, the Union argues that the proposal is an arrangement to ameliorate the employees' exposure to the high "level of noise in the computer room," and that, under the proposal, employees would continue to be "responsible for performing their work precisely where they had in the past." Id. at 20.

IV. Analysis and Conclusions

A. Preliminary Matters

We reject the Agency's claim that the petition for review should be dismissed because the Union failed to properly serve the Agency head at the time it filed its petition with the Authority. In this connection, although the petition for review was timely filed with the Authority, a copy of the petition was not served on the Agency head and on the principal Agency bargaining representative. Consistent with the Authority's usual practice, the Union was afforded an opportunity to serve the Agency head and the principal Agency bargaining representative and the Agency was afforded an opportunity to file its statement of position within 30 days after service was effected.

After notification by the Authority, the Union served the petition on the Agency head designee and the Agency's principal bargaining representative and the Agency filed a timely statement of position with the Authority.(1) As such, we find that the Agency was not prejudiced by the Union's failure to serve a copy of its petition for review on the Agency at the time it filed its petition with the Authority and we reject the Agency's claim that the Union's petition should be dismissed on this ground.

We also reject the Agency's claims that the petition should be dismissed because it involves both a negotiability issue and a contract interpretation issue. Where the conditions for review of a negotiability appeal have been met, a union is entitled to a decision from the Authority on whether a disputed proposal is negotiable. See American Federation of Government Employees, AFL-CIO, Local 2736 v. FLRA, 715 F.2d 627, 631 (D.C. Cir. 1983); National Federation of Federal Employees, Forest Service Council and U.S. Department of Agriculture, Forest Service, Region 6, Portland, Oregon, 45 FLRA 242, 246-47 (1992) (Forest Service). To the extent that there are issues in a case concerning whether a proposal conflicts with a higher-level agreement, in addition to issues concerning whether a proposal is negotiable under the Statute, the contractual issues should be resolved in other appropriate proceedings. See American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut, 29 FLRA 990, 993 (1987), reversed as to other matters sub nom. U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut v. FLRA, No. 87-1762 (D.C. Cir. 1990).

Here, the Agency alleges that the disputed proposal directly interferes with management's right under section 7106(b)(1) to determine the methods and means of performing work. Therefore, the conditions for review of a negotiability appeal have been met and the Union is entitled to a decision from the Authority on whether the disputed proposal is negotiable. Forest Service, 45 FLRA at 247. Accordingly, the Agency's claim that the proposal is inconsistent with parties' collective bargaining agreement provides no basis for dismissing the Union's petition.

B. Right to Determine Methods and Means of Performing Work

The Authority employs a two-part test to determine whether a proposal directly interferes with management's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute. First, an agency must show a direct and integral relationship between the particular method or means the agency has chosen and the accomplishment of the agency's mission. Second, the agency must show that the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 406 (1990).

We have construed "method" as referring to the way in which an agency performs its work. Id. "Means" refers to any instrumentality, including an agent, tool, device, measure, plan or policy used by an agency for accomplishing or furthering the performance of its work. Id. at 407. The term "performing work" is intended to include those matters that directly and integrally relate to the agency's operations as a whole. Id.

The relative importance of a particular "means" of performing work is irrelevant to a determination of whether a proposal interferes with the right to determine the methods and means of performing work. In this regard, the means employed need not be indispensable to the accomplishment of an agency's mission. Rather, the means 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.'" Id. at 407-08 (citations omitted). In this respect, we have determined that grouping employees based on the functions which they perform constitutes the methods and means of performing work under section 7106(b)(1) where it is shown that the performance of an agency's work is facilitated by the ability to functionally group employees. Id. at 408.

On the other hand, the location at which employees perform their duties, as one aspect of an employee's office environment, concerns a matter "at the very heart of the traditional meaning of 'conditions of employment.'" U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, and Social Security Administration, Fitchburg, Massachusetts District Office, Fitchburg, Massachusetts, 36 FLRA 655, 668 (1990) quoting Library of Congress v. FLRA, 699 F.2d 1280, 1286 (D.C. Cir. 1983) (proposals relating to seating assignments found negotiable); see, for example, National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Region V, Walnut Creek, California, 41 FLRA 1195 (1991) (proposal concerning office selection found negotiable).

As relevant in this case, the Agency claims that the placement of the two computer assistants in the computer room constitutes a functional grouping of employees because their job related duties are "directly and integrally linked to the equipment that is in the computer room[]" and "cannot be fulfilled outside the computer room." Statement of Position at 15. However, the Agency acknowledges that approximately 80 percent of the computer assistants' duties must be performed in the computer room. In this connection, the Agency asserts that it assigned the computer assistants to the computer room on a full-time basis in order to "release their desk space" outside the computer room for newly hired employees who do not have duties in the computer room. Id. at 4.

The Union "concedes that the employees' duties require them to spend approximately 80% of their time in the [computer room]." Reply Brief at 15. The Union also concedes that the affected employees must perform their computer-rela