[ v37 p350 ]
37:0350(22)NG
The decision of the Authority follows:
37 FLRA No. 22
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 3302
(Union)
and
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
DUNBAR BRANCH OFFICE
BALTIMORE, MARYLAND
(Agency)
0-NG-1704
DECISION AND ORDER ON NEGOTIABILITY ISSUE
September 19, 1990
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). It concerns the negotiability of a single proposal that provides that, when an employee is required to interview "irate" or "potentially dangerous claimants," the employee and the claimant will be escorted to a private interview room, or a more controllable interview area, and the employee and claimant will not be left alone.(1) We find that Proposal 3 directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute and to determine the numbers, types, and grades of employees assigned to a work project under section 7106(b)(1). We find that the proposal is not a negotiable procedure under section 7106(b)(2). We also find that although the proposal directly interferes with the above management rights, it constitutes a negotiable appropriate arrangement under section 7106(b)(3) because it does not excessively interfere with those rights.
II. Proposal 3
If an irate claimant or potentially dangerous claimant requires interviewing, the employee and claimant will be escorted to the private interviewing room or to an alternative interviewing room or more controllable interview area, and they will not be left alone.
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 3 is outside the duty to bargain because it: (1) directly interferes with management's right under section 7106(a)(1) of the Statute to determine its internal security practices; (2) directly interferes with management's rights under section 7106(a)(2)(A) and (B) to direct employees and to assign work; (3) directly interferes with management's right under section 7106(b)(1) of the Statute to determine the methods and means of performing work, as well as its right to determine the number of employees assigned to any work project or tour of duty; and (4) is not a procedure or an appropriate arrangement under section 7106(b)(2) and (3) of the Statute. Agency's Statement of Position (Agency's Statement) at 1-2, 5, 7, 9 and 11.
The Agency contends that the proposal: (1) requires management to take an action designed to "safeguard" its personnel against "an external risk"; (2) requires management to take substantive action by escorting both the employee and the claimant to either a "private interviewing room" or "alternative interviewing area[]"; and (3) commands, once the employee and claimant have gone to a more secluded area, that "they will not be left alone." Id. at 4.
The Agency contends that the Statute gives it the prerogative to determine what measures, if any, are necessary to protect its employees and that the Union has no right "to participate in the determination of specific steps to be taken by management to guard [A]gency employees against a potential risk[.]" Id. at 5. The Agency argues that because the proposal prescribes the measures that management must adopt to protect employees against external threats, it is "substantive" and not "procedural" and directly interferes with its right to determine its internal security practices under section 7106(a)(1) of the Statute. Id. at 5-6. The Agency also argues that the proposal is not a "general admonition obligating local management to give consideration to employee safety," but instead determines how management will handle interviews that pose a threat to the safety of employees. Id. at 7.
The Agency contends that the proposal infringes on management's right to assign work and to direct the work force under section 7106(a)(2)(A) and (B) because it requires management to arrange for a second employee to be present so that the interviewer and claimant will not be left alone. Id. The Agency argues that the determination as to how many employees are needed to interview a claimant and where interviews should take place is "the type of decision which the Statute reserves to management." Id. at 8. The Agency claims that "[f]irst-line supervision must retain the ability to direct the interviewer to continue without interruption or relocation." Id. The Agency also claims that requiring that additional employees be assigned to an interview constitutes a substantive limitation on management's right to assign work. Id.
The Agency also contends that Proposal 3 is nonnegotiable because it conflicts with management's right under section 7106(b)(1) to determine the number of employees assigned to a work project or tour of duty because it would preclude management from requiring an employee to work alone. Id. at 9. Additionally, the Agency argues that, by establishing a private or an alternative interviewing room, the proposal infringes on management's right under section 7106(b)(1) to determine the methods or means that the Agency will use in carrying out its mission "to interview claimants in order to determine their eligibility for benefits under the various titles of the Social Security Act." Id.
The Agency asserts that the proposal does not constitute an appropriate arrangement under section 7106(b)(3) because it does not relate to the exercise of a management right. The dispute arose in the context of bargaining over the impact and implementation of the Agency's decision to close its Dunbar Branch Office in East Baltimore and merge it into its larger office in downtown Baltimore. The Agency asserts that the only bargaining obligation it had was over its decision to close its Dunbar Branch Office and merge it into its downtown Baltimore office. The Agency notes that the office move was from an area with a high rate of crime and drug use to an area with greater police presence. The Agency argues that no connection has been established to show in what manner the proposal is an "appropriate arrangement" concerning the closing of the Dunbar Office. Id. at 10.
Finally, the Agency argues that the proposal is not an "arrangement" but an attempt to limit management's authority by "establishing a gratuitous and new security procedure" that excessively interferes with its rights under section 7106(a)(1) and 7106(b)(1). Id. at 11. The Agency contends that the proposal would "hamper the performance of agency work" and would "totally negate management's authority and discretion." Id.
2. Union
According to the Union, Proposal 3 is designed to protect employees before and during interviews from persons who pose a threat to employees' health and safety. Union's Response to the Agency's Statement of Position (Union's Response) at 2. The Union contends that it is not the intent of the proposal that employees may refuse to work, but only that the interview would be delayed until safer circumstances could be arranged. Under the proposal, such arrangements would include assigning another employee to accompany the employee conducting the interview or providing for the interview to be conducted in an area where assistance could be provided to the employee if it were necessary. Id. at 2-3.
The Union contends that the proposal is "essentially procedural" but the Union also notes that to be effective, the proposal "must prescribe some requirements that require management to safeguard the safety of employees" and acknowledges that those "requirements" may render the proposal substantive in nature. Id. at 3-4. If the proposal is found to directly interfere with management's rights for that reason, the Union contends that it would not excessively interfere with those rights.
The Union claims that the proposal would contribute to the efficient accomplishment of the Agency's mission because it would prevent disruption to the Agency's operations and reduce the possibility of a loss of productivity due to injuries. Id. at 4-5. Moreover, the Union argues, the "modest" increase in cost which would result from having a "special room" for such circumstances "would be overwhelmingly justified" and the "temporary assistance" of another employee during the interview is an "insignificant" burden "compared to the alternative of allowing the risk to go unattended." Id. at 5. The Union concludes that the proposal is just "good management." Id.
B. Analysis and Conclusions
1. Proposal 3 Interferes With Management's Right Under Section 7106(a)(1) to Determine Its Internal Security Practices
An agency's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the right to determine the policies and to take actions which are part of its plan to secure or safeguard its personnel and physical property and to prevent disruption of its operations. See National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706 (1990) (EPA); National Federation of Federal Employees, Local 15 and U.S. Army Armament, Munitions and Chemical Command, Rock Island Arsenal, Rock Island, Illinois, 30 FLRA 472 (1987) (Rock Island Arsenal); National Association of Government Employees, SEIU, Local R7-51 and Department of the Navy, Navy Public Works Center, Great Lakes, Illinois, 30 FLRA 415 (1987) (Navy Public Works Center, Great Lakes, Illinois).
The proposal requires the Agency to protect employees from harm during interviews with "irate" or "potentially dangerous" clients by requiring that the employee conducting the interview be accompanied during the interview by another employee and that the interview be conducted in a private interviewing room or a more controlled area. We find that protecting employees from "irate" or "potentially dangerous" clients during interviews is a matter which is linked to the Agency's concerns regarding threats to its personnel and property and to the conduct of its operations. See American Federation of Government Employees, AFL-CIO, Local 1411 and Department of the Army, Fort Benjamin Harrison, 32 FLRA 990, 993 (1988); American Federation of Government Employees, Council 214, AFL-CIO and Department of Defense, Department of the Air Force, Air Force Logistics Command, 30 FLRA 1025, 1028 (1988). We conclude, therefore, that the measures that the Agency will adopt to protect its employees from harm and its operations from disruption constitute a determination of the Agency's internal security practices.
The question presented by the proposal is whether management can be required to take action to deal with a potential threat to the security of employees and the workplace. 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 No. 70, slip op. at 14 (1990); National Association of Government Employees, Local R1-109, AFL-CIO and Veterans Administration Medical Center, Newington, Connecticut, 26 FLRA 532, 534 (1987); American Federation of Government Employees, AFL-CIO, Local 12 and Department of Labor, 18 FLRA 418, 421 (1985); American Federation of Government Employees, AFL-CIO, Local 1858 and Department of the Army, U.S. Army Missile Command, Redstone Arsenal, Alabama, 10 FLRA 440, 443-44 (1982); National Treasury Employees Union and Internal Revenue Service, 2 FLRA 281, 283 (1979). The proposal requires management to adopt a particular internal security practice and thereby restricts management's discretion to determine that it does not wish to adopt that, or any other, practice. Under section 7106(a)(1), management retains the discretion to determine if it will take action to protect employees before or during interviews. Consequently, we conclude that, by requiring management to adopt the policy prescribed in the proposal for the purpose of protecting its employees and operations from harm and disruption, Proposal 3 directly interferes with management's right to determine its internal security practices. In so finding, we address only the effect of the proposal on management's right to determine its internal security practices. We express no opinion as to the merits of an Agency decision not to provide the protection required by the proposal.
2. Proposal 3 Directly Interferes With the Agency's Right to Determine the Number of Employees Assigned to a Work Project or to a Tour of Duty Under Section 7106(b)(1)
Proposals that determine the number of employees who are assigned to a particular job or task directly interfere with management's right to determine the number of employees assigned to a work project under section 7106(b)(1). See Fraternal Order of Police, Lodge 1F (R.I.) Federal and Veterans Administration Medical Center, Providence, Rhode Island, 32 FLRA 944, 959 (1988) (Fraternal Order of Police) (Proposal 7); National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981), affirmed sub nom. NFFE Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982). Proposal 3 would directly interfere with the Agency's right to determine the number of employees assigned to a work project by requiring employees interviewing irate or potentially dangerous claimants to be accompanied by another employee. The proposal is, therefore, a matter over which the Agency may elect to bargain under section 7106(b)(1). The Agency, however, has elected not to bargain.
3. Proposal 3 Does Not Directly Interfere with Management's Right to Direct Employees and Assign Work Under Section 7106(a)(2)(A) and (B) of the Statute
The Agency argues that Proposal 3 violates management's right to direct employees and assign work because it would require a claimant "to be interviewed by two employees." Agency's Statement at 8. In our view, this argument is merely a restatement of the Agency's previous argument regarding management's right to determine the numbers, types and grades of employees assigned to a work project under section 7106(b)(1). We find no other reason, based on the record in this case, to conclude that the proposal would interfere with management's rights to direct employees or assign work. We note, in this connection, that the proposal would not require the Agency to assign specific duties to specific employees. Compare National Treasury Employees Union and Department of Agriculture, Food and Nutrition Service, 35 FLRA 254, 260-61 (1990) (proposal requires supervisors to discuss employees' performance with the employees prior to preparation of ratings of record).
4. Proposal 3 Does Not Involve the Exercise of Management's Right Under Section 7106(b)(1) to Determine the Methods and Means of Performing Work
The Authority employs a two-part test to determine whether a proposal violates management's right to determine the "methods and means of performing work." First, an agency must show a direct 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, 406-09 (1990) (IRS). The Authority has construed "method" as referring to the way in which an agency performs its work. Id. at 406. "Means" refers to any instrumentality, including an agent, tool, device, measure, plan or policy used by an agency for the accomplishing or furthering of the performance of its work.
Id. at 407. It need not be indispensable to the accomplishment of an agency's mission. 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 Agency states that the obligation to establish a private or an alternative interviewing room "infringes on Agency management's right to determine the [method or means] by which [the Agency] will carry out its assigned mission[.]" Agency's Statement at 9. Even assuming that proposals concerning the use of agency office space could constitute a "methods" or "means" within the meaning of section 7106(b)(1), under the test outlined above, such proposals would not be nonnegotiable unless the proposed use of space was directly and integrally related to the agency's operations as a whole. In short, it must be shown not just that the proposal concerns the use of office space for work, but that the proposed use has some connection to, or is determinative of, how the agency will perform its work.
Proposal 3 requires the Agency to provide "the private interviewing room," "an alternative interviewing room," or a "more controllable interview area." The Agency provides no evidence that the proposal would require it to do anything other than make existing space available for the interview. The record provides no evidence, for example, that the proposal would require modification of the existing office space in order for that space to be suitable for interviewing "irate" or "potentially dangerous" clients. Consequently, we find that the Agency has not demonstrated a connection between the proposed use of space and the performance of the Agency's work. We conclude, therefore, that the proposal does not concern the methods and means of performing work within the meaning of section 7106(b)(1) of the Statute.
We find that this case is distinguishable from cases in which the Authority has held that an agency's determination that it needs a "functional grouping" of its employees in order to perform its work constitutes an exercise of the agency's right to determine the methods and means of work under section 7106(b)(1). See, for example, National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 408 (1990). Unlike those cases, no showing has been made here that a connection or "link" exists between the use of Agency workspace and the performance of the Agency's work.
5. Proposal 3 is Not a Procedure Under Section 7106(b)(2)
The proposal directly interferes with management's rights under sections 7106(a)(1) and 7106(b)(1) by imposing on the Agency a particular security practice for safeguarding its personnel and operations and by prescribing the number of employees to be assigned to a certain work project. Therefore, we find that the proposal does not constitute a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. See American Federation of Government Employees, Council 214 and Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 34 FLRA 977, 984 (1990); International Organization of Masters, Mates and Pilots and Panama Canal Commission, 26 FLRA 92 (1987).
6. Proposal 3 is an Appropriate Arrangement Under Section 7106(b)(3)
Having determined that Proposal 3 interferes with management's right to determine its internal security practices under section 7106(a)(1) and its right to determine the numbers, types, and grades of employees assigned to a work project or to a tour of duty under section 7106(b)(1), we next decide whether the proposal constitutes an appropriate arrangement under section 7106(b)(3).
To determine whether the proposal constitutes an appropriate arrangement, we must determine whether the proposal is (1) intended to be an arrangement for employees adversely affected by the exercise of a management right, and (2) appropriate because it does not excessively interfere with the exercise of management's right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard).
The Union contends that Proposal 3 is intended to protect employees "before and during interviews from persons who pose a threat to the health and safety of employees." Union's Response at 3. The proposal is designed to minimize the risk to employees, as well as to the operations of the Agency, of injury or disruption. We find that the proposal is intended to address the adverse effects on employees of work assignments that require them to interview irate or potentially dangerous claimants. We conclude, therefore, that the proposal is an "arrangement" for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3).
To determine whether a proposal is "appropriate" because it does not excessively interfere with the exercise of a management right, we weigh "the competing practical needs of employees and managers" to determine whether the benefit to employees afforded by the proposal is greater than the burden placed by the proposal on the exercise of the management right or rights involved. Kansas Army National Guard, 21 FLRA at 31-34. The question, therefore, is whether the burden imposed on the exercise of management's rights by Proposal 3 is excessive when weighed against the benefit the proposal affords employees.
The Agency claims that issues as to appropriate arrangements should not be addressed because the proposal does not concern the effect of the exercise of a management right. The Agency argues that there is no relationship between the proposal and the transfer of employees from the Dunbar Street Office to the Lombard Street Office that gave rise to the negotiations in this case. However, the Agency's argument concerns the extent of its duty to bargain over a proposal offered in response to a change in working conditions and not the negotiability of the proposal. That argument is appropriately raised in an unfair labor practice proceeding. See National Federation of Federal Employees, Local 1363 and Department of the Army, HQ, U.S. Army Garrison, Yongsan, Korea, 9 FLRA 1037 (1982).
As to whether Proposal 3 is an appropriate arrangement, the Agency claims, with respect to the burden imposed on the exercise of management's rights, that the proposal "would be triggered by the request of an employee, be absolute, and would totally negate management's authority and discretion." Agency's Statement at 11. The Agency states that the Lombard Street Office is in an area where there is less crime and drug usage than there was in the area of the Dunbar Street Office. Id. at 10. The Agency provides no other evidence or argument to support its claim that the proposal is not an appropriate arrangement.
The Union claims that the Lombard Street Office is in an area "which suffers from a high incidence of crime." Union's Response at 1. The Union argues that the proposal would not permit employees to refuse to work, but would only delay the interview until "safer circumstances could be arranged." Id. at 2. The Union also argues that the proposal would benefit employees by affording them greater protection from clients who pose a threat to employees' health and safety and by reducing disruptions in the workplace. The Union concludes that the modest cost of a "special room" would be "overwhelmingly justified" and that the "temporary assistance of another employee or supervisor for the duration of one interview is insignificant compared to the alternative of allowing the risk to go unattended." Id. at 5.
We find that the benefits provided employees under the proposal outweigh the burden imposed by the proposal on the exercise of management's rights and we conclude, therefore, that the proposal does not excessively interfere with those rights. It does not appear that management has established a policy for dealing with "irate" or "potentially dangerous" clients. The Agency claims that by requiring it to establish the practice set forth therein, the proposal "usurps" management's sole prerogative to determine the security practices that will be used to protect employees.
In the absence of any other evidence, however, we conclude that the sole burden placed on management's right to determine its internal security practices is that management has lost the ability not to utilize the measures outlined in the proposal. Contrary to the Agency's argument, the proposal does not "totally negate" management's right under section 7106(a)(1) to determine its internal security practices. The proposal does not preclude management from supplementing the proposed policy by adopting other measures to address the problem of disruptive clients; it requires only that management establish the proposed policy. We find that the burden on management in being required to adopt the proposed policy for protecting its employees against "irate" or "potentially dangerous" clients is outweighed by the benefits afforded employees in the protection provided under the proposal.
We also find that Proposal 3 does not excessively interfere with management's rights under section 7106(b)(1) of the Statute. The proposal is limited to a narrowly defined circumstance, namely, when an employee is assigned to interview an "irate" or "potentially dangerous" client. There is no evidence in the record to suggest that interviews of this type of client are a frequent occurrence and, therefore, there is no basis for concluding that the proposal would require management frequently to assign another employee to accompany the employee conducting the interview. There is also no evidence as to the length of a normal client interview and, thus, there is no reason to conclude that assigning an employee to accompany the employee conducting the interview would deprive management of the services of that additional employee for any extended period of time.
Because there is nothing in the record to suggest that Proposal 3 would require more than the occasional assignment of an additional employee to accompany an employee conducting the interview of an "irate" or "potentially dangerous" client, we conclude that the burden imposed by the proposal on management's right to determine the numbers of employees assigned to the interview does not outweigh the benefit to employees of the protection afforded by the proposal. Accordingly, we find that Proposal 3 does not excessively interfere with management's right, under section 7106(b)(1), to determine the numbers, types and grades of employees assigned to a work project.
We find that, on balance, the benefits afforded employees by Proposal 3 outweigh the burdens placed on the Agency. Consequently, we find that Proposal 3 does not excessively interfere with management's rights under section 7106(a)(1) and section 7106(b)(1) of the Statute and conclude that the proposal is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
III. Order
The Agency shall upon request, or as otherwise agreed to by the parties, bargain on Proposal 3.(2)
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. The Agency withdrew its declaration of nonnegotiability with respect to Union Proposals 1 and 2. Therefore, those proposals are not before us.
2. In finding that this proposal is negotiable, we make no judgment as to its merits.