In the Matter of
NATIONAL AERONAUTICS AND SPACE
GEORGE C. MARSHALL SPACE FLIGHT CENTER
MARSHALL SPACE FLIGHT CENTER, ALABAMA
MARSHALL ENGINEERS AND SCIENTISTS
LOCAL 27, INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL ENGINEERS,
Case No. 91 FSIP 132
The National Aeronautics and Space Administration (NASA), George C. Marshall Space Flight Center, Marshall Space Flight Center, Alabama (Employer or MSFC), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under section 7119 of the Federal Service Labor-Management Relations Statute (Statute) between it and the Marshall Engineers and Scientists Association, Local 27, International Federation of Professional and Technical Engineers, AFL-CIO (Union or MESA).
The Panel determined that the impasse should be resolved pursuant to written submissions from the parties with the Panel to take whatever action it deemed appropriate to resolve the impasse. Submissions were made pursuant to these procedures and the Panel has considered the entire record.
The Employer's primary mission is to research and develop the propulsion system for the space shuttle. The Union represents approximately 1,800 engineers and scientists, mainly General Schedule (GS) -13 and above. The parties' collective bargaining agreement expired on July 15, 1991. The current dispute arose after the Employer was granted authority to construct a new building. Thereafter, the parties agreed to negotiate a Memorandum of Understanding (MOU) concerning the general subject of "changes in conditions of employment resulting from physical moves of MESA unit employees into and within new and existing MSFC buildings."
ISSUES AT IMPASSE
While the parties are at impasse on a number of issues, their
primary disagreement concerns whether the Employer shall have the
discretion to use "open-landscape design1/" in office areas, including those in the new building.
1. The Employer's Position
In essence, the Employer proposes that: (1) it be given the discretion to implement open-landscape design in new and existing
buildings; if such design is used, it agrees to provide unit employees with work space "that is adequate for the performance of the duties of their position," and make a "reasonable effort" to allocate a minimum of 80 square feet for each unit employee relocated to such an area; (2) with respect to both "open landscape" and "traditional" offices, it agrees to "make a reasonable effort" to locate unit employees assigned to the same
team in the same general area; (3) if a "physical move" covered by the agreement results in a significant change in an employee's duties and responsibilities, he or she may request a "Position Content Review" in accordance with NASA regulations; and (4) the provisions of the MOU be effective "immediately upon signature of the parties" and "automatically incorporated without further negotiation" into the parties' new term agreement after the current agreement, scheduled to expire in July 1991, is renegotiated; and that the MOU contain wording specifying that the parties have had "full and fair opportunity to bargain on all aspects of the subject of physical moves of bargaining-unit employees" addressed in the MOU and that it represents "the full and complete agreement on such."
Concerning the key issue in dispute, the open-landscape concept has been used successfully on a small scale in a number of existing MSFC buildings housing unit employees. In this regard, "recent experience has shown that the use of open-landscape design with modern systems furniture can have a 1/ The Employer defines "open-landscape" offices as "a generally open area with individual workstations with systems furniture."
very positive effect on the morale of unit employees." In addition, it would maximize the use of the new building by: (1) eliminating current and projected office space shortages; (2) permitting space previously converted into offices to be reclaimed as much-needed technical facilities; (3) eliminating present and future requirements for off-site leasing of commercial space; and (4) freeing up other space to obtain improvements in operational efficiency and productivity. Moreover, a survey of private-sector companies2/ currently using the open-landscape concept "including Boeing (Huntsville, AL), McDonnell-Douglas (Huntsville, AL), USBI (Huntsville, AL), Digital Equipment Corp. (Atlanta, GA), and American Cancer Society (Atlanta, GA)," confirmed that, overall, it was accepted by employees, cost-effective, and generally problem free. It has the added benefits of providing better climate control capability than traditional floor-to-ceiling offices, and permitting easier and less costly reorganization of office space.
By providing that employees be given work space "adequate for the performance of duties," its proposal is consistent with the parties' term agreement. It goes beyond that requirement, however, by obligating the Employer to make a "reasonable effort" to allocate at least 80 square feet for each employee. While it is true that the average space of existing offices is greater than 80 square feet, adoption of its proposal nonetheless could have a positive impact on productivity as many of them are "substandard."
The Union's proposal, on the other hand, would provide all unit employees with traditional offices, thereby eliminating the benefits of open-landscape design, and increasing to an unacceptable level construction costs in the new building. Insofar as its wording regarding space allocations would apply to existing traditional offices, it is outside the Employer's bargaining obligation because there is a provision in the parties' term agreement covering such circumstances. Further, the part of the proposal requiring the use of NASA's regulation on office-space allowances is inappropriate in these circumstances because "it was not written from the standpoint of assigning office space to individual employees." It also could lead to disagreements and
grievances, as could the part of the proposal which specifies that
2/ The results of the survey were summarized in an affidavit provided by the Director of the Employer's Facilities Office.
"comparable office accommodations after the move" as before the move. Moreover, allocating office space on the basis of grade level is administratively burdensome because it would require tracking the promotions of unit members, and the continual reshuffling of office areas. As to the "evidence" provided by the Union in support of its position, much of it is undocumented. Finally, the part of the proposal providing premium space for employees, and linking such space with the amounts allocated to managers, is 'bizarre."
Turning to the other aspects of the dispute, by agreeing to make a reasonable effort to locate unit employees assigned to the same team in the same general area, productivity should be enhanced. In contrast, "it just does not always make sense" to require that all personnel assigned to a particular branch have office space close to all other members of the same branch, as proposed by the Union, because "the facilities, laboratories, and other equipment which the employees use in their daily work are often physically located in various places throughout the Center." Moreover, by preventing it from assigning employees to offices next to facilities used in their daily work, the Union's proposal interferes with management's right to determine the methods and means of performing work, under section 7106(b)(1) of the Statute. Similarly, by preventing it from deciding to abolish laboratories purely for technological or mission-related reasons, parts (4)(a) and (b) of the Union's proposal regarding unused space and the conversion of laboratory space also interfere with that section of the Statute. In addition, its proposal to permit employees to request supervisory review of the content of their position descriptions should be adopted because it would apply to a "broader range of circumstances" than the corresponding section of the Union's.
The Union's proposed wording that no unit employees be moved into new or refurbished buildings until negotiations are completed "is pointless" because "it becomes moot at the time it goes into effect." The Employer also offers no counterproposal on the issue of the Union's use of conference rooms in Building 4200, primarily because "there will be more appropriate times to address this question if the preliminary plans" for such rooms become a reality. The proposal also has "nothing to do with physical moves of unit employees." Finally, MSFC's proposal on the duration and scope of the MOU differs from the Union's "only to the extent that it seeks to make clear that the parties have had a full and fair opportunity to bargain on the matters covered by the agreement and that the issues" are closed until the parties next collective bargaining agreement expires. In this regard, "further bargaining on the subject of office moves" until such time "would be inappropriate and contrary to the expressed intentions of the parties." Contrary to the Union's view, it does not constitute a waiver, but "is merely a statement of fact."
2. The Union's Position
The Union essentially proposes that: (1) no unit employee
be moved into a refurbished or new building, and management refrain from announcing or distributing office assignments of unit employees, until negotiations are completed; (2) the Employer adhere to NASA's regulations concerning "Space Allowance Standards for Office Space," and (a) all unit employees be provided offices with floor-to-ceiling walls and doors; (b) as a minimum, the amount of office space assigned to employees be determined using NASA standards, which generally correlate amount of office space with GS level; (c) the Employer provide "comparable office accommodations after the move" as before the move; (d) among other things, at least 65 percent of senior unit employees (GS-13 and up) be located in private offices, and that private offices be assigned to unit employees on the basis of seniority "to the extent possible;" and (e) additional office space be provided to unit employees based on the need for extra office equipment and on a formula which correlates such additional space with the amount of office space occupied by the managers in the unit employees' chain of command; (3) organizational units have offices "located in the same general area, i.e., branches together, teams together, etc.;" (4)(a) MSFC "make a reasonable effort to utilize unused space" by enforcing its own regulations regarding the storage of unused equipment "before any existing laboratories are abolished;" and (b) "if any laboratory space utilized by unit employees is converted to some other usage," a reasonable effort be made to accommodate the laboratory equipment or functions in another adjacent laboratory," unit employees be provided adequate time to effect any changes, and
if laboratory functions or capabilities are altered so as to change an employee's duties or responsibilities, the employee may request the supervisor to consider changing his or her performance plan; (5) it have use of any planned conference rooms on the ground floor of Building 4200 "subject to scheduling;" and (6) the provisions of the MOU be effective immediately upon signature by the parties and automatically incorporated without further negotiation into the parties' new collective bargaining agreement, to be effected by the parties following renegotiation of the current agreement.
Its proposal on office space and design "is the result of an
extensive effort by the Union to assess the agency proposal's effect on quality improvement, employee productivity, and employee morale." The effort has included surveys of several engineering companies which incorporated systems furniture and open landscape in their floor plans, and unit members' attitudes concerning the proposed office accommodations. "The consensus" at the engineering companies "was that noise levels and other distractions associated with this office concept made the arrangement unacceptable," but that "due to the sizable investment the companies had in these facilities, some could not afford to abandon it immediately." Moreover, an open-landscape experiment occurred "several years ago" at MSFC on one floor of a large building involving unit members with job functions similar to those slated for the new building. "By management's own admission" the experiment was "a dismal failure." In surveys of its own members, employees "overwhelmingly opposed" the concept because of noise and distractions, as well as "the demoralizing effect of housing degree professionals in 80 square feet stalls."
The Union's proposal reflects 30 years of past practice, would
improve morale, and result in greater productivity and efficiency than the Employer's. It reasonably would require the Employer to use its own clearly-understood regulations when allocating office space, particularly insofar as it provides larger space to more highly-graded employees. The Employer's proposal, on the other hand, was "developed without total cost/benefit assessment" and "is not based on any demonstrated need." It also is not as cost effective as alleged, given the high price of systems furniture compared with traditional furnishings. Moreover, if the Employer's open-landscape experiment proves to be a failure, "it would be financially prohibitive to correct in the future." The companies visited by MSFC "were generally irrelevant," which is another indication that it failed to do its "homework by not researching the issues sufficiently." Finally, among other things, the Employer also has failed to substantiate its claim that open-landscape design would have a positive impact on productivity, nor has it justified "such a costly experiment with our nation's brightest scientists and engineers."
With respect to the other issues at impasse, requiring the Employer to hold the implementation of the physical moves of unit employees in abeyance until completion of the negotiation process "is consistent with its obligations under the Statute" and would enhance the efficiency of agency operations. The part of its proposal which would locate the offices of employees in particular organizational units in the same general area would promote productivity and "is the current practice for most of the unit members."
Part 4 of the proposal concerning "the procedures to be used to lessen the impact of facility utilization on unit employees," would merely require the Employer to enforce its own regulations regarding facility management, and could prevent employees from having "to travel great distances between workstations to accomplish their tasks." It also reasonably specifies that if the agency's actions change an employee's duties, the supervisor must consider changing his or her performance plan "as mandated by law." Its proposed wording on the use of conference rooms simply would ensure that management gives the Union the same access to conference rooms that it "freely gives to other organizations." Moreover, because the subject was raised by the Employer in its initial briefing with the Union, it "is appropriate for negotiations at this time." The final part of its proposal concerning the duration of the MOU is "essentially what management asked for." It would be contrary to the interests of the bargaining unit, however, for the Union to accept the Employer's additional wording and "agree to waive its rights - should management choose to change other conditions of employment relating to employee offices."
Having considered the evidence and arguments in this case, we shall order that, for the most part, the Employer's position be adopted to settle the parties' dispute. Turning first to their primary area of disagreement, on balance we are persuaded that the Employer should be given the discretion to use open-landscape design in new and existing office areas. In reaching this conclusion, we are mindful that the bargaining unit is composed mainly of highly-graded scientists and engineers who have worked in more traditional offices for many years. It is understandable that such a profound change from previous working conditions would initially evoke some apprehension on the part of employees. The record demonstrates, however, that the Employer has weighed the potential costs and benefits of this part of its proposal, including its impact on the morale and recruitment of employees, and the mission of the agency for which it, and it alone, is responsible. In such circumstances, we are unwilling to withhold from the Employer the right to determine what is in its own best interests. Should a change to open-landscape design ultimately prove unsatisfactory, however, the parties will have another opportunity to address the matter upon the expiration of their successor collective bargaining agreement.
With respect to the remaining issues in dispute, we find unnecessary the part of the Union's proposal essentially requiring the Employer to delay the implementation of moves of bargaining-unit employees until negotiations are complete. In this regard, the parties should rely on the fully adequate mechanisms provided by the Statute should the Employer implement physical moves of employees prior to the completion of the collective bargaining process. Concerning the location of employees in office areas, we are convinced that the Employer's proposal is likelier to enhance productivity than the Union's because it would give management more flexibility to locate individual office areas close to support facilities. The Union's proposal, on the other hand, could reduce efficiency by requiring entire branches of organizational units to be located in the same general area without sufficient justification. Regarding the dispute over unused space and equipment, in our view, the Union has failed to demonstrate a need for this part of its proposal. Moreover, if it believes that the agency is violating its own regulations on these matters, redress could be sought through the parties' negotiated grievance procedure. Further, on the portion of the issue dealing with changes in an employee's duties and responsibilities, we favor the
Employer's wording because it would permit the review of an employee's position description whenever a physical move covered by the MOU results in a significant change in such duties. It would, therefore, have a broader application than the Union's wording, which refers only to changes caused by the reduction or elimination of laboratory functions or capabilities. For these reasons, we shall order its adoption.
We also see no need for the Union's proposal on the future use of conference rooms in Building 4200. While the topic arguably is within the scope of negotiations over the physical moves of bargaining-unit employees because it was raised by the Employer in its initial briefing with the Union, we are persuaded that it would be more appropriate for the parties to revisit the issue at such time as the existence of the conference rooms is no longer speculative. Finally, since both parties propose, among other things, that the provisions of their MOU be automatically incorporated without further negotiation into their successor collective bargaining agreement, which will be effected by the parties following renegotiation of the current agreement, this shall be part of the Panel's Order. With respect to the Employer's additional proposed wording, however, if it "is merely a statement of fact," as it contends, it appears to be unnecessary. In our view, because it could be interpreted broadly by a third party to constitute a waiver of the Union's bargaining rights, it shall be excluded from the Order.
Pursuant to the authority vested in it by section 7119 of the Federal Service Labor-Management Relations Statute and because of the failure of the parties to resolve their dispute during the course of proceedings instituted pursuant to section 2471.6(a) (2) of the Panel's regulations, the Federal Service Impasses Panel under section 2471.11(a) of its regulations hereby orders the following:
The parties' Memorandum of Agreement entitled "Physical Moves of Bargaining-Unit Employees" shall include the wording upon which they have previously agreed, as well as the following sections:
Section 1. When MSFC makes the determination that "open landscape" is the most practicable design for an office area, including those offices in Building 4203, MSFC agrees to provide unit employees with work space that is adequate for the performance of the duties of their position. MSFC further agrees to make a reasonable effort to allocate a minimum of 80 square feet for each unit employee relocated to such an area. For the purposes of this agreement, an "open-landscape" office area is defined as a generally open area with individual workstations with systems furniture. With respect to both "open landscape" and "traditional" (i.e., offices with floor-to-ceiling walls) offices, MSFC agrees to
Section 5. MSFC will make a reasonable effort to locate MESA unit employees assigned to the same team in the same general area.
Section 8. In the event that a physical move covered by this agreement results in a significant change in duties and responsibilities of a unit employee, the employee may request a Position Content Review in accordance with Phase I, Section A (page 6) of the User's Guide to the NASA Performance Appraisal System for Nonsupervisory Employees (dated June 1981).
Section 10. The provisions of this agreement are effective immediately upon signature by the parties and will be automatically incorporated without further negotiation into the new MSFC-MESA collective bargaining agreement which will be effected by the parties following renegotiation of the current agreement scheduled to expire in July, 1991.
By direction of the Panel.
Linda A. Lafferty
August 2, 1991