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58 FLRA No. 156
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
NATIONAL COUNCIL
OF FIELD LABOR LOCALS
(Union)
and
UNITED STATES
DEPARTMENT OF LABOR
(Agency)
_____
0-NG-2687
DECISION AND ORDER
ON NEGOTIABILITY ISSUE
July 9, 2003
______
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and involves a single proposal concerning the number of Government vehicles that will be available to unit employees at the Agency's Denver facility for the performance of their work. The Agency filed a Statement of Position and a Reply and the Union filed a Response.
For the following reasons, we find that the proposal is within the Agency's duty to bargain.
II. Proposal [n1]
Keep both GSA cars in Denver for FY03. At the end of FY03, revisit moving one GSA vehicle if the mileage does not meet GSA's objective as outlined in Article 17.
III. Background
In response to Agency notice that it intended to return one of two General Service Administration (GSA) vehicles at its Denver office due to insufficient use, the Union proposed that both vehicles be retained until the end of the 2003 fiscal year. If at that time, insufficient use was demonstrated, the existence of a second GSA vehicle would be terminated. The vehicles are used by unit employees in conducting contract compliance evaluations, investigations, and reviews in five Western states. The Agency stated that it would not negotiate the decision to eliminate one of the vehicles, but that it would bargain over the impact and implementation of that decision. [n2]
IV. Positions of the Parties
A. Agency
The Agency contends that the proposal challenges its right to determine the number of GSA vehicles assigned to its Denver office and thus that the proposal directly interferes with its right to determine the means of performing the Agency's work under § 7106(b)(1) of the Statute. In particular (citing AFGE, AFL-CIO, Local 3804, 21 FLRA 870, 888 (1986) (Local 3804)), the Agency asserts that the Authority has held that the decision as to the mode of transportation used for accomplishing the agency's mission is a decision as to the means of performing the agency's work. According to the Agency, because it elects not to bargain about the substance of the decision to return one of the vehicles, under § 7106(b)(1), the matter is outside the duty to bargain. [n3]
The Agency states that the Union's claim that the proposal constitutes a procedure under § 7106(b)(2) is a bare assertion that the Authority should not consider. The Agency also maintains that the proposal does not constitute an appropriate arrangement within the meaning of § 7106(b)(3) of the Statute. In particular, the Agency contends that the Union has failed to articulate how the proposal is an "arrangement" for employees adversely affected by the exercise of a management right under § 7106. Further, the Agency argues that the proposal excessively interferes with the exercise of management's right to determine the methods and means of performing the Agency's work under § 7106(b)(1). According to the Agency, there are 9 employees at the Denver office who could use the 2 [ v58 p617 ] vehicles. The Agency maintains that because the vehicles are under-utilized, the adverse effect on employees of returning one of the vehicles would be de minimis. Agency Reply at 5. The Agency asserts that the proposal totally abrogates its decision to return one of the vehicles and thus is not an appropriate arrangement.
B. Union
The Union contends that the proposal does not interfere with management's right to determine the means of performing the Agency's work. The Union distinguishes Local 3804 on the ground that in that case the proposal concerned the decision to use leased vehicles and, in the instant case, the Agency has approved the use of two GSA vehicles and the proposal concerns the Agency's decision to return one of the vehicles.
In the alternative, the Union argues that the proposal constitutes a procedure under § 7106(b)(2) of the Statute or an appropriate arrangement under § 7106(b)(3) for employees adversely affected by the exercise of a management right. The Union states that all employees in the Denver office will be adversely affected by management's decision to determine the means of performing work by reducing the number of available vehicles. According to the Union, the Agency's decision will reduce the overall travel budget available to enable employees to perform their work by raising the costs of renting vehicles from an outside vendor. The Union also asserts that the Agency's decision will: (1) restrict management's ability to schedule work assignments in a timely manner and will force employees to use their own vehicles; and (2) require employees to spend more work time arranging for other transportation, thus decreasing the amount of time spent on performing the duties of their positions. The Union contends that the proposal will benefit employees by providing time in which to adequately assess the use of the two GSA vehicles. The Union asserts that the proposal would not burden management's right to determine the means of performing work because after the parties have adequately assessed the use of the two vehicles, if the use does not meet the Agency's criteria, the Union will agree to the return of one of the vehicles.
V. Analysis and Conclusions
There are two prongs to the Authority's test used to determine whether a proposal concerns the methods or means of performing work. First, the proposal must concern a "method" or "means" as defined by the Authority. In this regard, the Authority construes the term "method" to refer to how an agency performs its work. See, e.g., General Services Admin., 54 FLRA 1582, 1590 n.6 (1998). The term "means" refers to what an agency uses to perform its work. [n4] Id. Second, it must be shown that: (1) there is a direct and integral relationship between the particular methods or means the agency has chosen and the accomplishment of the agency's mission; and (2) the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. See, e.g., AFGE, Council of GSA Locals, Council 236, 55 FLRA 449, 452 (1999). See also AFGE, Local 3529, 57 FLRA 172, 175 (2001).
For purposes of this decision, we assume without deciding that the proposal concerns the exercise of management's right to determine the means of performing the Agency's work within the meaning of § 7106(b)(1) of the Statute and, for the following reasons, we conclude that it is within the duty to bargain as an appropriate arrangement under § 7106(b)(3). [n5]
In determining whether a proposal or provision constitutes an appropriate arrangement within the meaning of § 7106(b)(3), the Authority applies the analytical framework articulated in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). Under this framework, the Authority first determines whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right. See id. at 33; see also United States Dep't of the Treasury, Office of the Chief Counsel, IRS v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). In this connection, the Authority has held that a proposal can constitute an appropriate arrangement for the exercise of a management right under § 7106(b)(1). See POPA, 56 FLRA 69, 86 (2000) (citing ACT, Montana Air Chapter v. FLRA, 756 F.2d 172, 180 (D.C. Cir. 1985)).
To establish that a proposal is an arrangement, a union must identify the adverse effects or reasonably foreseeable adverse effects on employees that flow from the exercise of management's rights and how those effects are adverse. See KANG, 21 FLRA at 31. The claimed arrangement must also be sufficiently tailored to compensate employees suffering adverse effects [ v58 p618 ] attributable to the exercise of management's rights. See NAGE, Local R1-100, 39 FLRA 762, 766 (1991).
If the proposal is determined to be an arrangement, then the Authority determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right(s). See KANG, 21 FLRA at 31-33. In doing so, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's rights. See id.
The Union contends that its proposal constitutes an appropriate arrangement for employees adversely affected by the Agency's decision. In particular, the Union makes specific claims with respect to the burden imposed on employees and on the accomplishment of the Agency's work as eliminating one of the vehicles will increase the number of times an employee has to make alternative arrangements with private rental car companies. Based on this record, therefore, it is reasonable to conclude that the Union has demonstrated that the proposal constitutes an "arrangement," under § 7106(b)(3), for employees adversely affected by the exercise of management's right to determine the means of performing work under § 7106(b)(1) of the Statute.
As to whether the proposal is an "appropriate" arrangement, the Union notes that its proposal doubles the number of GSA vehicles available for employee use and would prevent employees from being burdened with the need to make alternative rental arrangements. While the Agency argues that the proposal abrogates its decision to return one of the underutilized vehicles to GSA, the Agency provides little in the way of support for that argument. In this regard, we note that Article 17, Section 1.A. of the parties' collective bargaining agreement references the use of GSA objectives to evaluate GSA vehicle usage and needs. As the proposal establishes the same type of evaluative considerations already negotiated in the parties agreement, we do not find the impact on the Agency to be as significant as alleged. Moreover, the proposal provides the Agency with an opportunity to demonstrate its claims of underutilization at the end of the fiscal year.
Consequently, on balance, the benefit to employees afforded by the proposal outweighs the temporary impact of the proposal on the Agency resulting from having to delay until the end of the 2003 fiscal year its final decision about the number of GSA vehicles it will have at its Denver office. Accordingly, the proposal does not excessively interfere with management's right to determine the means of performing work under § 7106(b)(1) and constitutes an appropriate arrangement within the meaning of § 7106(b)(3) of the Statute.
VI. Order
The Agency shall upon request, or as otherwise agreed to by the parties, bargain on the proposal.
APPENDIX
Article 17, Section 1 of the parties' National Agreement provides as follows:
Article 17
GSA Vehicles or Leased Vehicles
Section 1--Assignment of GSA Vehicles or Leased Vehicles; or Recall
A. Employees may be assigned GSA vehicles or leased vehicles in accordance with GSA usage objectives which for passenger carrying vehicles is a minimum of 3,000 miles per quarter or 12,000 miles per year, or the use of a vehicle is required on a daily or an almost daily basis to conduct Government business, provided, however, that Management is not required to buy, lease, or rent additional vehicles.
B. GSA or leased vehicles may be made available by the supervisor to those employees who do not wish to drive their POV [privately owned vehicle] and are required to travel on official business on a daily or almost daily basis and/or there is no public transportation available, or when an employee is required to carry heavy and/or bulky equipment for the performance of his/her job.
C. It is agreed and understood that no employee shall be required to provide a privately owned vehicle for use on Department business or to maintain a privately owned vehicle as a condition of employment.
D. In the event Management makes changes concerning the utilization of GSA or leased vehicles, Management will notify the Union and bargain with it on appropriate procedures and any adverse effect in accordance with Article 2 of the Agreement.
Footnote # 1 for 58 FLRA No. 156 - Authority's Decision
The text of the proposal set forth here is the wording that the parties agree is in dispute. See Report of Post-Petition Conference at 2.
Footnote # 2 for 58 FLRA No. 156 - Authority's Decision
The Union also filed an unfair labor practice charge alleging that the Agency violated § 7116(a)(1) and (5) of the Statute by unilaterally changing its practice concerning use of the GSA vehicles. The Union subsequently withdrew the charge.
Footnote # 3 for 58 FLRA No. 156 - Authority's Decision
In connection with this argument, the Agency cites, without further comment or argument, Article 17, Section D, of the parties' National Agreement, the relevant text of which is set forth in the Appendix to this decision.
Footnote # 4 for 58 FLRA No. 156 - Authority's Decision
More precisely, the Authority has construed "means" to refer to "any instrumentality, including an agent, tool, device, measure, plan, or policy used by an agency for the accomplishment or furtherance of the performance of its work." See IFPTE, Local 49, 52 FLRA 813, 818 (1996).
Footnote # 5 for 58 FLRA No. 156 - Authority's Decision
We reject the Union's claim that the proposal constitutes a negotiable procedure under § 7106(b)(2) on the ground that it is a bare assertion. See, e.g., AFGE, Local 1858, 56 FLRA 1115, 1116 (2001).