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47 FLRA No. 20

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1122

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

WESTERN PROGRAM SERVICE CENTER

RICHMOND, CALIFORNIA

(Agency)

0-NG-2075

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

March 31, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on 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 two proposals.

Proposal 1 requires the Agency to provide two centralized telephones for unit employees to handle rollover calls.⁽¹⁾ We find that Proposal 1 is a negotiable appropriate arrangement. Proposal 2 requires the Agency to provide certain unit employees with telephones in their workstations to handle rollover calls. We find that Proposal 2 is also a negotiable appropriate arrangement.

II. Background

The Union submitted these proposals during negotiation of a memorandum of understanding (MOU) between the Agency and the Union to resolve issues concerning the impact and implementation of the Agency's decision to install systems furniture in bargaining unit employees' work areas. Previously, the employees' workstations were located in open areas without partitions. The new systems furniture design replaced the open area workstations with individually assigned cubicles separated by partitions. The parties signed an MOU which governed the seating arrangements in the new work areas and individual phone number assignments. The proposals at issue in this case were submitted by the Union for inclusion in the MOU; however, the Agency declared the proposals nonnegotiable.

III. Preliminary Matter

The Agency contends that the scope of bargaining covered by the parties' MOU concerning the impact and implementation of seating and individual phone number assignments resulting from the installation of new systems furniture at the Agency was "limited to seat assignments resulting from the systems furniture installation and the designation of telephone numbers to those seat assignments." Statement at 3. Further, the Agency contends that it "had not [made] nor did it intend to make any changes in the assignments of telephones to bargaining unit employees." Id. Accordingly, the Agency asserts that "there was no duty to bargain" over the Union's proposal. Id.

To the extent that the Agency is contending that the Union's petition should be dismissed because the Agency has no duty to bargain over the proposals, the Agency's contention does not provide a basis for dismissing the petition. Under section 7117(c) of the Statute and part 2424.1 of the Authority's Rules and Regulations, the Authority will consider a petition for review of a negotiability issue only where the parties disagree over whether a proposal conflicts with law, rule, or regulation. See National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Louisville, Kentucky, 40 FLRA 902, 903 (1991) (DMA), vacated in part and remanded mem. as to other matters, 955 F.2d 764 (D.C. Cir. 1992), decision on remand, 45 FLRA 640 (1992). Therefore, because the parties in this case disagree as to whether the proposals involved are inconsistent with law and regulation, the petition is properly before us under section 7117 and section 2424.1.

It is well established that where the conditions for review of a negotiability appeal have been met, a union is entitled to a decision from us on whether a disputed proposal is negotiable under the Statute, although additional issues may exist, including whether an agency is obligated to bargain under the terms of a master agreement, or, as in this case, under the terms of a MOU. See, for example, American Federation of Federal Employees, Local 2736 v. FLRA, 715 F.2d 627, 631 (D.C. Cir. 1983). Consequently, to the extent that issues exist regarding the Agency's duty to bargain on the proposals, such issues should be resolved in other appropriate proceedings. See DMA, 40 FLRA at 903 and cases cited therein.

IV. Proposal 1

In addition to the RAS [Records Analysis Specialist] phone, two centralized phones in the RAC [Records Analysis Clerk] clerk area at each end to be installed to handle [rollover] calls.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 1 directly interferes with management's right to determine the technology of performing work under section 7016(b)(1) of the Statute. The Agency argues that the Union's proposal "directly interferes with management's right to determine the number and location of telephones needed to accomplish the Agency's work[.]" Id. at 6. The Agency claims that the matter raised by the proposal is "a matter bargainable only at the election of the Agency since telephone usage for business reasons concerns the technology of performing work." Id. at 6-7 (citing National Treasury Employees Union, Chapter 229 and Department of Health and Human Services, Headquarters, 22 FLRA 698 (1986) (DHHS).

The Agency states that "[a]lthough most of the RAS's contacts are in-person either with the RACs, the mod[ule] managers or other personnel in the [Agency], he/she may answer questions, via the telephone, for other SSA [Social Security Administration] offices about a claims folder location, correspondence, or related matters." Id. at 5-6. The Agency further states that "[w]hen the RAS is not available, a RAC working nearby (or another employee in the mod[ule] with call pick-up on his/her telephone) may answer the incoming business call." Id. The Agency argues that: (1) "this system of handling [business] calls has worked well"; (2) "the system is not changing"; and (3) "additional phones are not needed merely because new furniture is being installed." Id. at 6.

The Agency maintains that the Union only intended Proposal 1 as a procedure whereby business calls for the RAS could roll over to the RACs. The Agency asserts that the Union never stated that it was requesting the telephones for employees to use for personal emergencies until it explained the proposal in its petition for review. The Agency argues that inasmuch as the Proposal 1, "as written and as discussed during the negotiations of the MOU[,] dealt solely with providing additional phones for work-related reasons, the Authority [should] consider the [U]nion's appeal only on this basis." Statement at 5. Further, the Agency asserts that inasmuch as the proposal only deals with handling rollover calls, any Union argument regarding "access to the phone to place calls also should be disregarded . . . ." Id. at 10 (emphasis omitted).

The Agency contends that Proposal 1 does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute. The Agency claims that the proposal is not an arrangement because "the initial systems furniture installation and retention of existing individual phone number assignments did not create a situation which adversely impacted on the Record Analysis Clerks . . . ." Id. at 10. In support of this contention, the Agency argues that "the RACs are not restricted in their access to the RAS telephone after the new workstations are installed." Id. at 9. The Agency asserts that "[it] is not, as the [U]nion alleges, 'altering past practices in place for many years.'" Id. at 10 (quoting Petition at 12).

Further, the Agency contends that, if the proposal is found by the Authority to be an arrangement, it is not appropriate because "any possible benefit for employees by adopting the [U]nion's proposal is outweighed by the excessive interference with the right of management to determine the number and location of telephones to be used for business." Id. at 8. The Agency claims that the proposal "imposes an unwarranted expenditure of Agency funds for the additional monthly telephone charges." Id. at 11.

2. Union

The Union contends that Proposal 1 is intended as an appropriate arrangement for employees adversely affected by the Agency's "[m]ovement of the RAS phone from a previously open and centralized location within the RAC area to the RAS'[s] X-2 cubicle [which] restricts access to this phone for RACs." Petition at 11. The Union asserts that "[p]hones within furniture workstations are in effect private lines." Id. The Union claims that management, "in restricting access of the RACs to phones without negotiating on this matter[,] is unilaterally altering a past practice in place for many years." Response at 9; see Petition at 12. The Union claims that the RACs "should have open, accessible and audible phones conveniently located within common locations and [should] not have to intrude inside the workstation of any employee nor impose on any employee present." Response at 9.

The Union notes that it has signed negotiated agreements with the Agency concerning the use of the Government phone system and that the Agency has authorized employees "to make personal and long distance calls in accordance with GSA [General Services Administration] regulations." Id. at 6.⁽²⁾ The Union states that under GSA regulations employees may make official business calls which include "emergency calls and other calls deemed necessary in the interests of the [G]overnment." Id. (citing 41 C.F.R. § 201-21.601(d)). Further, the Union states that "[e]mployees are also authorized to call and receive calls from their [U]nion representatives by phone in accordance with Article 3, Sections 1 and 6 of the [parties'] National Agreement" and section 7102 of the Statute. Id. The Union claims that "[s]ince emergency calls made are often preceded by a call and followed by a call in response, management[,] in restricting access to phones as a result of the systems furniture[,] adversely impacts the RACs and RAS." Id.

Specifically, the Union states that the "floorplan changed dramatically as a result of [the] systems[] furniture installation and access to the phone by the RACs is virtually cut off." Id. at 7. The Union notes that under the new floorplan "the RACs and the RAS are no longer to be seated together." Id. The Union states that since "the [RAS's] desk has been moved a considerable distance away from the RAC seating and is now enclosed by 3 1/2 to 5 1/2 foot partitions, it follows that the phone has also moved and is not accessible . . . ." Id. Further, the Union notes that "RACs will spend considerable amounts of work time at the PCT Net terminals[,]" as well as at "the paper receipt and dispatch areas and at the TUBS" and the file area which are located a considerable distance from the RAS phone. Response, Exhibit 8.

The Union argues that the proposal "does not require the Agency to provide phones to [RACs] for the performance of their official duties." Id. at 9. Rather, the Union argues that the proposal would permit employees access to the phone "for personal emergencies" and for other authorized nonwork-related reasons as provided in the parties' MOU and in GSA regulations. Id. at 8. In this regard, the Union asserts that: (1) "[its] negotiating team never raised the issue of RAC access to phones for the performance of their official duties"; and (2) "[t]he RACs do not use the phone in the performance of their official duties." Id. Further, the Union argues that "the [U]nion proposal does not involve any interference [with] the RAS' use of the phone to perform work." Id. The Union notes that in addition to receiving rollover calls, "the RACs could call out on the new phones to be proposed." Petition at 11.

The Union concedes that the Northern Telecom Incorporated (NTI) phone system used by the Agency rolls over calls "without determining whether the caller is calling for business or personal reasons" and, therefore, any calls to be rolled over "would be both business and personal in nature." Response at 5. However, the Union asserts that the proposal "does not interfere with management['s] discretion to decide whether or not calls should be rolled over" and that "[t]he [m]odule management has control over roll over and can make the adjustments with minimal effort and at no cost." Id. at 5-6. Noting that the RACs' workstations "are already wired for phone use[,]" the Union states that it "does not consider its proposal to excessively interfere with any management right." Petition at 12.

B. Analysis and Conclusions

The RASs and the RACs, referred to in Proposal 1, perform certain technical functions related to the review and authorization of claims for Social Security benefits. They also establish and adjust the records of beneficiaries. The RASs and the RACs work in groups called "modules." Statement at 5. Each RAS acts as team leader for approximately 8 RACs in a module. There are 16 modules, with a group of 4 modules located on each of four floors of the Agency's building. The Union represents "each of the 117 [RACs] and 16 [RASs] assigned to the modules." Petition at 9. Part of the responsibility of the RAS is to answer questions received by telephone from other Agency offices and to obtain claims information by contacting other offices by telephone. When the RAS is not available to answer his or her telephone, RACs may answer the call. The Agency uses two telephone systems, the NTI system and the Rockwell system. The NTI system "is the only one available for employee general use." Id. at 4. The Agency maintains 32 "centrally located" NTI phones on the RASs' desks. Petition at 5; Statement at 9.

For the following reasons, we find that Proposal 1 is negotiable as an appropriate arrangement.

1. Proposal 1 Directly Interferes with Management's Right to Determine the Technology of Performing Work

The Authority employs a two-part test to analyze whether a proposal directly interferes with management's right to determine the technology used in performing work under section 7106(b)(1) of the Statute. In order to sustain such a claim, an agency must show: (1) the technological relationship of the matter addressed by 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. See, for example, National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 404 (1990) (IRS); American Federation of Government Employees, AFL-CIO, National Council of Social Security Field Office Locals and Department of Health and Human Services, Social Security Administration, 24 FLRA 842, 846-47 (1986). Further, management's rights under section 7106 include not only the right to act, but also the right not to act. See National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 632 (1990) and cases cited therein.

The Agency asserts that its system of requiring "a RAC working nearby" to act as a phone backup and to answer the RAS's telephone when the RAS is not available is a "system of handling [incoming business] calls" that has "worked well[.]" Statement at 6. Based on the Agency's assertion, we find that the Agency has determined that RACs will be used as phone backups to the RAS to answer official business phone calls. In this regard, to provide backup phone coverage for the RASs, the Agency maintains telephones on the RASs' desks which the RACs answer when the RASs are unavailable to answer their phones.

Proposal 1 requires the Agency to install two additional centralized telephones with rollover capability to handle incoming calls that roll over when the RASs or RACs are unable to answer the RASs' phone within eight rings. The Union states that the proposal's primary concern is to maintain RACs' current accessibility to receive emergency and other nonwork-related telephone calls authorized by the Agency and is not to provide additional phones to the RACs in their capacity as phone backups to the RAS for official Agency business. However, as noted by the Union, the NTI phone system rolls over calls "without determining whether the caller is calling for business or personal reasons" and, therefore, any calls to be rolled over could be either personal or relate to official Agency business. Response at 5. In effect, therefore, notwithstanding the other uses for the proposed phones, the proposal requires the Agency to provide RACs with telephones with the capability to receive rollover calls in their capacity as phone backups to the RAS for phone calls related to official Agency business.

We find that telephones with rollover capability constitute a technology for providing phone backup. Consequently, because Proposal 1 requires the Agency to install telephones with rollover capability that would be used for Agency business, we find that the Agency has established that there is a technological relationship between the subject matter of the proposal and the accomplishment or the furtherance of the performance of its work. See, for example, American Federation of Government Employees, National Border Patrol Council, Local 2544 and U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, Tucson, Arizona, 46 FLRA 930, 959 (1992), petition for review filed, 93-70137 (9th Cir. Feb. 8, 1993); National Treasury Employees Union, Chapter 229 and Department of Health and Human Services, Headquarters, 22 FLRA 698, 699 (1986) (DHHS).

Further, we find that the Agency's decision to maintain fewer telephones and not install additional phones to accept rollover calls constitutes an exercise of its right under section 7106(b)(1) to determine the technology of performing its work. By requiring the Agency to use additional phones with rollover capability to provide phone backup and to place those phones in centralized locations, Proposal 1 would directly interfere with the purposes management sought to achieve when it adopted the technology of fewer phones with no rollover capability to accomplish its work. Accordingly, we find that the Agency has established that Proposal 1 directly interferes with its right under section 7106(b)(1) of the Statute to determine the technology of performing its work. See, for example, DHHS, 22 FLRA at 699 (a proposal which intrudes upon management's right to determine the number, types and location of telephones provided to employees concerns the technology of performing work under section 7106(b)(1) of the Statute and is bargainable only at the election of the agency). Under section 7106(b)(1), management retains the discretion to determine that it will not install additional telephones with rollover capability to handle rollover calls. Consequently, the proposal is nonnegotiable unless it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

2. Proposal 1 Is an Appropriate Arrangement

The Union contends that Proposal 1 is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-35 (1986) (KANG), the Authority established an analytical framework for evaluating proposals intended to constitute appropriate arrangements. Specifically, in determining whether a proposal constitutes an arrangement, we first ascertain whether the proposal is intended as an arrangement for employees adversely affected by the exercise of a management right. KANG, 21 FLRA at 31. In deciding whether a proposal constitutes an arrangement, we examine whether the proposal is intended to address or compensate for the adverse effects on unit employees that result from management's exercise of its rights under the Statute. See, for example, American Federation of Government Employees, Local 3509 and U.S. Department of Health and Human Services, Social Security Administration, Greenwood, South Carolina District, 46 FLRA 1590, 1601 (1993). If we determine that the proposal is an arrangement, we then examine whether the arrangement is appropriate. KANG, 21 FLRA at 31-32.

As to whether the proposal constitutes an arrangement, the Union explains that the proposal is intended as an arrangement for RACs and the RAS who will be adversely affected by the Agency's decision to place the RAS' centrally located telephone within a system furniture workstation and, therefore, "in effect" make the telephone a "private line[]." Petition at 11. According to the Union, the proposal provides the RACs with access to the RAS telephone that is similar to the access that they had prior to management's decision to adopt enclosed systems furniture workstations. The Union claims that the adoption of systems workstations restricts the audibility of and access to the telephone which is contained within the RAS's workstation. The Union asserts that the resulting restriction on the audibility of and access to the RAS's telephone adversely affects the RACs and the RAS because those employees are authorized to receive and make emergency phone calls, as well as other nonwork-related calls, such as to the Union, and that this restriction impedes the employees' ability to receive and make such calls. We reject the Agency's contention that we should consider this proposal and Proposal 2 solely with respect to phone calls related to Agency business. It is clear from the record that the parties have discussed other authorized uses for the telephones than just official Agency business. See, for example, Response, Exhibit 5 (MOU covering employees' use of Agency telephones and authorizing, among other things, certain phone calls to family, doctor, child care providers and to arrange for emergency repairs to residence or automobile).

Applying the analytical framework set forth in KANG, we find, as stated by the Union, that Proposal 1 is intended to benefit those employees who no longer retain the same accessibility to the RAS's telephone to receive authorized personal phone calls due to the placement of the RAS's telephone inside of a systems furniture workstation. The proposal would ameliorate the Agency's decision to adopt systems furniture workstations, which placed the RAS's telephone in an enclosed area further away from the RACs' enclosed workstations and other work areas, by providing centrally located telephones, outside of the RAS's and RACs' enclosed workstations, where employees would be better able to receive and make unintrusive personal emergency and authorized nonwork-related calls.

Accordingly, we find that Proposal 1 constitutes an arrangement, within the meaning of section 7106(b)(3) of the Statute, for those employees who are adversely affected by the exercise of management's right under section 7106(b)(1) to adopt systems furniture. See, for example, IRS, 35 FLRA at 404 (agency's decision to adopt certain systems furniture workstations constitutes a determination as to the technology of performing work). In reaching this conclusion, we reject the Agency's contention that the proposal does not constitute an arrangement because "the initial systems furniture installation and retention of existing individual phone number assignments did not create a situation which adversely impacted on the RACs . . . ." Statement at 9. Other than asserting that "the [RACs] are not restricted in their access to the RAS's telephone after the new workstations are installed[,]" the Agency has offered no support for this contention. Id. In contrast, the Union supports its assertions in this regard with exhibits of the floorplans of the affected employees' work areas before and after the installation of the module workstations, identifying the relevant placement of employees, work areas, and the RAS's telephone.

Having found that the proposal constitutes an arrangement, we next determine whether the proposed arrangement is appropriate within the meaning of section 7106(b)(3) because it does not excessively interfere with the exercise of management's rights or whether it excessively interferes with management's rights under the Statute. KANG, 21 FLRA at 31-32. In assessing whether a proposal excessively interferes with a management right, we balance the competing practical needs of managers and employees. Id. In other words, we will determine whether the burden imposed on the exercise of management's rights by the proposal is excessive when weighed against the benefit the proposal affords to employees.

By providing RACs with two centrally located telephones to handle rollover calls from the RAS' telephone, Proposal 1 provides the RACs with more accessible phones to enable the RACs to answer telephone calls when the RAS is unavailable to answer his or her phone and, thus, increases the chances of phone messages being received in the RAS's absence. As such, Proposal 1 reduces the possibility that the RACs or the RAS will be subject to delayed or missed incoming authorized official phone calls or messages, including those involving personal emergencies, due to the inability of someone to answer the call. Additionally, the proposal permits the RACs to receive and make such calls without having to take such calls in the RAS' workstation with the RAS present. Although there can be instances that such calls are made and received when the RAS is out of his or her workstation, there are no assurances that the RAS will not be in or return to his or her workstation while the RAC is engaged in the call. In those instances, phone calls can be transferred outside of the RAS' workstation to one of the proposed phones. See Petition at 11 ("incoming calls for RACs [can] be transferred to the new phones in the [U]nion's proposal"). Providing for a phone outside of the RAS' workstation on which RACs can receive or make authorized calls, including personal emergency calls, would enable RACs to handle those calls without the RAS overhearing and would be less disruptive to the work of the RAS. We find that this would be a significant benefit to the RACs and the RAS.

On the other hand, we find that the burden placed on management has not been shown to be excessive. As noted by the Union, the workstations have already been equipped for the installation of additional phones. Further, we note the Union's contention that "[t]he proposal does not interfere with management['s] discretion to decide whether or not calls should be rolled over." Response at 5. Rather, the Union claims that module management "can make the adjustments [to prevent calls from rolling over to the proposed phones] with minimal effort and at no cost." Id. at 5-6. The Union states that under the proposal the proposed phones "would only handle [rollover] calls if [rollover] is allowed to occur." Id. at 6. Based on the Union's uncontroverted statements, we find that management retains the discretion to determine whether the calls from the RAS's phone will roll over to the proposed telephones. Therefore, management can determine whether rollover will be permitted to occur to the proposed phones all of the time, some of the time, or only to certain of the proposed phones. In the event that management determines that it will not allow rollover to occur, as noted above, under Proposal 1 calls can be transferred to the proposed phones outside of the RAS' workstation to permit the RACs to receive and make authorized calls without intruding upon the RAS inside of his or her workstation. Permitting employees to use the proposed telephones to receive and make phone calls authorized by the Agency does not place an excessive burden on management's right to determine the technology of performing its work.

We note the Agency's contention that Proposal 1 excessively interferes with management's right to determine the technology of performing its work because it "imposes an unwarranted expenditure of Agency funds for the additional monthly telephone charges." Statement at 11. However, even assuming that costs are a relevant consideration in resolving whether a proposal excessively interferes with a management right other than management's right to determine its budget under section 7106(a)(1) of the Statute, we find that the Agency has not supported its claim as to the costs of installing and maintaining the additional phones. In particular, the Agency has presented no evidence as to the increase in costs of phone service that would be involved or demonstrated how that increase would be an excessive cost for the technology required by the proposal. It is well established that the parties bear the burden of creating a record on which the Authority can make a negotiability determination and that a party failing to meet its burden acts at its peril. See, for example, American Federation of Government Employees, AFL-CIO, Local 3769 and U.S. Department of Agriculture, Federal Grain Inspection Service, League City Field Office, Texas, 45 FLRA 92, 97 (1992) (DOA).

Moreover, we note that the Authority has stated, when considering cost arguments in contexts other than management's budget right under section 7106(a)(1), that an agency is not exempt from the obligation to bargain over a union proposal solely because that proposal may result in some increase in costs. See, for example, National Association of Government Employees, Local R4-26 and Department of the Air Force, Langley Air Force Base, Virginia, 40 FLRA 118, 150 (1991) ("costs factors alone do not justify a compelling need for an agency regulation"); American Federation of Government Employees, Local 1698 and U.S. Department of the Navy, Naval Aviation Supply Office, Philadelphia, Pennsylvania, 38 FLRA 1016, 1026 (1990) (Naval Aviation Supply Office) (proposal requiring agency to retain 6-day pay lag, arguably resulting in some increase in costs, held not to directly interfere with management's rights).

Further, we note that the Agency fails to cite any statutory or regulatory provision which would prohibit it from determining that the installation and servicing of telephones for employees' authorized nonwork-related use, including use in personal emergencies, is in the interest of the Government so as to constitute the official business of the Government. Consequently, we conclude that the decision to install and service the telephones required by the proposal is within the discretion of the Agency under law and regulation. Agencies are required to negotiate on matters pertaining to the conditions of employment of unit employees that are within the discretion of the agency under law and regulation and are not otherwise nonnegotiable. See, for example, National Federation of Federal Employees and General Service Administration, 24 FLRA 430, 432-33 (1986) (GSA) (proposal which required the installation and servicing of telephones in union offices found by the Authority to be within the agency's discretion under law and regulation). See also National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 38 FLRA 615, 619 (1990) (IRS). We also note that there is nothing in applicable regulatory provisions that would preclude the Agency from continuing to permit employees to use telephones for nonwork-related calls that the Agency has authorized as set forth in the parties' MOU.

On balance, we find that the benefit provided employees by the proposal outweighs the minimal burden placed on management. Consequently, we conclude that Proposal 1 does not excessively interfere with management's rights under section 7106(b)(1) of the Statute and is negotiable. In finding the proposal negotiable, we note that the Authority has consistently reminded the parties that "a finding of negotiability means only that a proposal is within the duty to bargain, not that a proposal must, or ought to, be implemented. An agency has no obligation to abandon what it conceives to be the best interests of the agency merely because it must negotiate on a proposal." Naval Aviation Supply Office, 38 FLRA at 1026.

V. Proposal 2

NPR[s] [Notice Preparation Reviewers] shall each have regular [NTI] phones in their workstations to handle [rollover] from the mod[ule] secretary.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 2 directly interferes with management's right to determine the technology of performing work under section 7016(b)(1) of the Statute. The Agency argues, as it did with respect to Proposal 1, that Proposal 2 directly interferes with its right to determine the number and location of telephones needed to accomplish its work, a matter bargainable only at the election of the Agency. For the reasons stated with respect to Proposal 1, the Agency maintains that the Union only intended Proposal 2 to provide telephones "for work-related reasons." Statement at 11. The Agency asserts that "a union proposal that sufficient telephones for the conduct of Government business be furnished concern[s] the 'technology of performing work' within the meaning of section 7106(b)(1) of the Statute. Id. at 12-13 (citing American Federation of Government Employees, Local 644 and U.S. Department of Labor, Mine Safety and Health Administration, 21 FLRA 1046, 1047-48 (1986) (Department of Labor)).

The Agency states that "a telephone on one of the NPR's desks suffices to handle the few [rollover] calls which occur when the mod[ule] secretary or his/her [backup] is unavailable." Id. at 12. The Agency disputes the Union's contention that the NPR assigned the rollover telephone is unable to "concentrate on performing duties" because of being "constantly interrupted" to handle rollover calls. Id. (citing Petition at 15). The Agency states that its "current system of handling calls has worked well and is not changing because of the installation of [systems] workstations[.]" Id. Consequently, the Agency claims that "additional phones [for the NPRs] are not needed." Id.

The Agency contends that Proposal 2 "is not an appropriate arrangement for the NPRs . . . because any possible adverse impact on them [caused by the adoption of systems furniture] is minimal." Id. at 13. First, the Agency argues that the proposal does not constitute an arrangement for employees adversely affected by the exercise of a management right. The Agency asserts that as the rollover telephone is currently on an individual NPR's desk, it is not, as asserted by the Union, in a "common area[.]" Id. (emphasis omitted). The Agency notes that under its current open floorplan arrangement employees are required to answer the telephone which handles rollover calls when the NPR with the phone is absent. Further, noting its assertion that "few calls" roll over from the module secretary to the NPR telephone, the Agency claims that requiring NPRs to enter the absent NPR's systems workstation to answer the "rollover telephone" does not constitute an intrusion upon that absent employee because "workstations are not the private property of the occupant." Id. (citing Petition at 15).

The Agency contends that, if the Authority nevertheless finds the proposal to constitute an arrangement, it is not an appropriate arrangement because it excessively interferes with management's rights. The Agency asserts that

[r]equiring that all NPRs have telephones in their workstations to handle [rollover] calls from the mod[ule] secretary is an unreasonable interference with the Agency's right to determine the technology of performing work and outweighs any possible benefit for the NPRS. Further, this proposal imposes an unjustified expense on the Agency for the additional monthly telephone charges.

Id.

2. Union

The Union contends that Proposal 2 does not interfere with management's right to determine the technology of performing work under section 7106(b)(1) of the Statute. Noting that the proposal would require management to provide each NPR assigned a systems furniture workstation with an NTI telephone to handle rollover calls from the module secretary, the Union asserts that management retains the discretion to determine "to whom the [rollover] calls would be assigned" and "whether [rollover] calls should even occur." Id. Further, the Union asserts that the proposal "does not require management to set up any rotation to handle [rollover] calls." Id. at 15.

The Union claims that the Agency's reliance on Department of Labor is misplaced because Proposal 2 "makes no statement of any specific intent to require [the Agency] to provide phones specifically for the conduct of [A]gency work." Id. at 13. The Union argues that "the proposal is merely incidental to work technology" and is subject to bargaining under the Authority's two-part test to determine whether a proposal directly interferes with management's right to determine the technology used in performing work.

In the alternative, the Union contends that Proposal 2 establishes an arrangement "to address the adverse impact on the NPRs" caused by management's decision to adopt systems furniture "without excessively interfering with management rights." Petition at 16. The Union claims that "the assignment of systems furniture to the modules restricts access by the two NPRs per module left without phones and puts a burden of handling the numerous calls received daily by the module on the one NPR assigned to the phone." Response at 11.

The Union asserts that "there is no specially designated NPR 'backup secretary' with official duties that are distinct from those of other NPRs." Id. at 13. The Union claims that the NPR who will be assigned to have the phone within the confines of his or her workstation will be "treated in a disparate manner as a result of spending more time [answering rollover telephone calls]" because the NPR is not appraised on that duty. Id. at 14. Additionally, the Union claims that this NPR would be required to receive all rollover emergency calls and "could be interrupted by other NPRs needing to make calls for [authorized nonwork related reasons] or for personal emergencies." Petition at 15. Moreover, the Union asserts that because "[m]any of the employees . . . are single parents or parents with working spouses" and child care arrangements have to be made, "[p]hone access is a must." Id. In this regard, the Union notes that, upon the request of certain NPRs concerned about receiving incoming telephone calls from their children's daycare providers, the Agency installed a phone line in an open area of their temporary typing area.

The Union states that the NPRs' current work area consists of six desks with varying functions (i.e., word processing, writing areas, typing) and that the NPRs rotate among the desks, including the desk with the phone, because they perform different tasks at different desks. The Union states that currently the NPRs have common access to the NPR phone "which is located no more than ten feet away for making and receiving calls." Id. at 12. Further, the Union states that the module secretary's phone "is also audible from some distance and can be answered by call pickup since [the] desks are relatively close to each other and not surrounded by partitions." Id. at 11. The Union contends that, under the Agency's systems furniture plan, the NPR phone will be relocated to an enclosed workstation occupied by one NPR and the module secretary's phone "will be less audible due to increased floorspace required for cubicles and partitions ranging in height from 3 1/2 to 5 1/2 feet surrounding each cubicle." Id.

Noting that "outlets [are] already wired for future phone use" in the systems furniture workstations currently assigned to the NPRs, the Union argues that the costs associated with implementing its proposal "is not significant compared with the benefits" derived from the proposal by the NPRs. Petition at 14; Response at 16. Further, the Union claims that the Agency has not supported its assertion that "the costs for operating the proposed additional phones would impose an undue burden." Response at 15.

B. Analysis and Conclusions

The NPRs referred to in Proposal 2 perform a variety of coding and typing duties. There are a total of 43 NPRs represented by the Union. Three NPRs are assigned to each module. According to the Agency, one of the NPRs acts as a backup for the module secretary. Additionally, one NPR has a NTI telephone to handle rollover calls when neither the module secretary nor the NPR assigned to backup the module secretary is available.

Proposal 2 requires the Agency to install an NTI telephone with rollover capability in every NPR's systems furniture workstation to handle the module secretary's rollover phone calls. Applying the Authority's two-part test to determine whether a proposal directly interferes with management's right to determine the technology used in performing work, and for the reasons set above forth with respect to Proposal 1, we find that the Agency has established that there is a technological relationship between the subject matter of the proposal and the accomplishment or furtherance of the performance of its work. Further, for the reasons set forth above with respect to Proposal 1, we find that the Agency's decision to have fewer phones and not install additional phones to accept rollover calls constitutes an exercise of the Agency's right under section 7106(b)(1) to determine the technology of performing its work.

We conclude, therefore, that requiring the Agency to provide every NPR with an NTI telephone that has rollover capability, where the Agency has determined that providing one NPR with an NTI phone is sufficient to handle the rollover calls, directly interferes with the Agency's right under section 7106(b)(1) of the Statute to determine the technology of performing its work. Consequently, Proposal 2 is nonnegotiable unless it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. For the following reasons, we find that Proposal 2 is negotiable as an appropriate arrangement.

The Union asserts that the proposal is intended as an arrangement for NPRs adversely affected by management's decision to place the centrally located NPR phone within the confines of a systems furniture workstation. The Union claims that the proposal provides NPRs with access to the phones similar to the access that they had prior to management's decision. In this regard, the Union asserts that the proposal permits employees to make and receive authorized nonwork-related phone calls, including personal emergency calls, without intruding on the NPR assigned to have the phone in his or her workstation and without that NPR overhearing the conversation. Further, the Union asserts that the proposal will allow for the "dispersal of [rollover] phone calls made to the NPR area among all NPRs." Petition at 15. By permitting the dispersal of rollover calls among all the NPRs, the Union claims that the proposal will reduce the adverse effect on the NPR's ability "to concentrate on performing" the duties on which he or she is appraised that results from the NPR having the phone in his or her workstation. Id. Therefore, the Union asserts that the proposal will ameliorate the adverse effect on the NPR's ability to perform the work on which he or she is appraised that results from being required to have the NTI phone in the NPR's workstation.

Applying the test set forth in KANG, we find that the proposal is intended to benefit the NPRs who would no longer have similar access to the NPR telephone due to the Agency's placement of the phone inside the systems furniture workstation of one NPR. The proposal would ameliorate the adverse effect on employees that results from the Agency's adoption of systems furniture workstations, which placed the NPR telephone in an enclosed area and further away from the NPRs without the phone, by providing each NPR with a phone so that they would each have easier access to the phones on which to receive and make authorized nonwork-related calls, including personal emergency calls. Further, the proposal provides each NPR with an equal chance of receiving rollover phone calls, and, therefore, reduces the adverse effect on the ability of the one NPR to whom rollover calls would be directed to perform the duties on which he or she is appraised.

Accordingly, we find that the proposal constitutes an arrangement for those employees who are adversely affected by the exercise of management's right under section 7106(b)(1) to adopt systems furniture. We now consider whether Proposal 2 is an appropriate arrangement or whether it excessively interferes with the exercise of a management right.

The proposal would benefit the NPRs who are without phones in their workstations by providing them with easier access to rollover calls when the NPR who has the phone is unavailable to answer that phone. Therefore, as we found in connection with Proposal 1, the proposal increases the chance that phone messages received in the absence of the NPR who has the phone will reach the intended recipient and provides the affected employees with the ability to receive and to make personal phone calls more unintrusively than if they were forced to make such calls within the enclosed workstation of another employee. Additionally, the proposal would reduce the impact of the volume of phone traffic on the one NPR who is solely responsible for answering rollover phone calls.⁽³⁾ By requiring one NPR to be responsible for answering all rollover calls, where previously the responsibility was more equally shared by all NPRs, the Agency decision would affect that one NPR's ability to perform the duties of his or her position. In our view, the benefits to the NPRs afforded by the proposal would be significant.

On the other hand, the burden placed by the proposal on the Agency has not been shown to be excessive. Although the proposal requires the Agency to provide each NPR with a NTI phone inside of his or her workstation, as discussed in connection with Proposal 1, the workstations have already been wired for phone installation and management retains the discretion whether or not to allow any or all of the phones to roll over. Further, as noted in connection with Proposal 1, management's contention that the proposal would require an "unjustified expense" by the Agency, and that it is, therefore, excessively burdensome, is not supported by record evidence and does not provide a basis for finding that the proposal excessively interferes with management's right to determine the technology of performing work. Statement at 13. See, for example, DOA. Finally, as we found with respect to Proposal 1, the decision to install and service telephones for employees' authorized nonwork-related use, including use in personal emergencies, is within the Agency's discretion under law and regulation. Agencies are required to negotiate on matters pertaining to the conditions of employment of unit employees that are within the discretion of the agency under law and regulation and are not otherwise nonnegotiable. See, for example, IRS; GSA.

Accordingly, on balance, we find that the benefits afforded the employees by the proposal outweigh the minimal burden placed on management. Therefore, we conclude that Proposal 2 does not excessively interfere with management's right to determine the technology of performing work and that it is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

VI. Order

The Agency must, upon request or as otherwise agreed to by the parties, negotiate on the disputed proposals in this case.⁽⁴⁾

APPENDIX

The parties' Memorandum of Understanding of April 1991 covering policies for the use of Government Telephones provides in relevant part:

PROVISIONS

. . . .

2. Unit employees are authorized to use the [G]overnment telephone system to make personal and long distance telephone calls consistent with the General Services Administration (GSA) regulations currently found in the Federal Register, Volume 52, Number 213.

. . . .

4. The Privacy Act and all relevant contractual articles/sections concerning employee privacy will be applicable to this matter. Nothing in this agreement shall serve to diminish in any manner any unit employee's constitutional, statutory or contractual rights.

Article 3 of the parties' national agreement, entitled "Employee Rights," provides in relevant part:

Section 1--Right to Unionism

Each employee shall have the right to join or assist the Union, or to refrain from such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right. Except as otherwise provided under law, such right includes the right:

--to act for a labor organization in the capacity of a representative, and the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities; and

--to engage in collective bargaining with respect to conditions of employment through representatives.

. . . .

Section 6--Right to Union Representation

A. If the employee wishes to discuss a problem or potential grievance with a union representative, the employee shall have the right to contact and meet with the union representative on duty time. The employee will be released from duties to contact and meet with the union representative when he/she request to exercise this right, unless there is a pressing operational exigency.

Subpart 201-21.6 of title 41 of the Code of Federal Regulations, entitled "Use of Government Telephone Systems, provides in relevant part:

§ 201-21.601 Authorized use of long distance telephone services.

. . . .

(d) Procedures. Official business calls may include emergency calls and other calls the agency determines are necessary in the interest of the Government. FIRMR Bulletin C-13 provides examples of calls that may be considered in the interest of the Government.

(1) Telephone calls may properly be authorized when they--

(i) Do not adversely affect the performance of official duties by the employee or the employee's organization;

(ii) Are of reasonable duration and frequency; and

(iii) Could not reasonably have been made at another time; or

(iv) Are provided for in a collective bargaining agreement that is consistent with these regulations.

(2) Personal long distance calls that must be made during working hours may be made over the commercial long distance network if consistent with the criteria in paragraph (d)(1) of this section and are--

(i) Charged to the employee's home phone number or other non-Government number (third-number call);

(ii) Made to an 800 toll-free number;

(iii) Charged to the called party if a non-Government number (collect call); or

(iv) Charged to a personal telephone credit card.

(3) Agencies shall issue directives on using telephone facilities and services. Agencies' contractor-operated facilities shall be covered by these directives. The directives may provide further definition of calls necessary in the interest of the Government and shall include procedures for collection and reimbursement for unauthorized calls.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Rollover calls are "incoming phone calls which automatically transfer to a second phone when the first phone is not answered after eight rings." Petition at 8.

2. The relevant provisions of the parties' agreement and GSA regulations are set forth in the Appendix to this decision.

3. The Agency contends that the NPRs receive few rollover phone calls and the Union disputes this contention. However, it is clear from the record that under the systems furniture configuration the NPR with the NTI phone would receive all of the rollover phone calls in his or her workstation. This would require this NPR to answer all rollover calls if he or she is present and would require the other NPRs to get up from their workstations and enter the workstation with the NPR phone in that person's absence. In contrast, under the current open floor plan, the NPR phone is located closer to the other NPRs in the module. Further, under the open floor plan, the NPRs rotate among six desks (including the desk with the NPR phone), whereas when the NPRs convert to systems furniture workstations they will work primarily in their individual workstations.

4. In finding that these proposals are negotiable, we make no judgments as to their merits.

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