[ v02 p255 ]
02:0255(30)NG
The decision of the Authority follows:
2 FLRA No. 30
NATIONAL TREASURY EMPLOYEES
UNION
(Union)
and
U.S. CUSTOMS SERVICE, REGION VIII,
SAN FRANCISCO, CALIFORNIA
(Activity)
Case No. 0-NG-3
DECISION ON NEGOTIABILITY ISSUE
PROPOSAL
NTEU PROPOSES THAT PPM MANUAL SUPPLEMENT, SUBJECT: NAMEPLATES FOR
UNIFORMED PERSONNEL BE WORDED AS FOLLOWS:
1. PURPOSE
TO TEST THE USE OF NAMEPLATES BY UNIFORMED CUSTOMS OFFICERS.
2. BACKGROUND
PRESENTLY, UNIFORMED CUSTOMS OFFICERS ARE ONLY REQUIRED TO PROVIDE
THEIR NAME UPON
REQUEST. CUSTOMS MANAGEMENT BELIEVES THE USE OF NAMEPLATES IS A
POSITIVE ACTION THAT WILL
MAKE CUSTOMS APPEAR MORE OPEN AND RESPONSIVE TO THE TRAVELING PUBLIC
AND IMPORTING COMMUNITY.
3. ACTION
THE SAN FRANCISCO REGION WILL CONDUCT A SIX MONTH EXPERIMENT ON THE
WEARING OF NAMEPLATES
ON A VOLUNTARY BASIS BY UNIFORMED AND NON-UNIFORMED EMPLOYEES. THE
VOLUNTEERS MAY CHOOSE
WHETHER S/HE USES FIRST NAME AND LAST INITIAL, FIRST INITIAL AND LAST
NAME, OR BOTH FIRST AND
LAST NAME.
THE NAMEPLATES WILL BE FURNISHED BY THE EMPLOYER. TWO SETS OF
NAMEPLATES, ONE FOR THE
EMPLOYEE'S BLOUSE OR SHIRT, AND ONE FOR THE EMPLOYEE'S JACKET OR
COAT, WILL BE FURNISHED TO
EACH VOLUNTEER.
UPON THE CONCLUSION OF THE SIX MONTH EXPERIMENT, NTEU AND THE
EMPLOYER WILL MEET TO
EVALUATE THE RESULTS.
4. EFFECTIVE DATE
THE SIX MONTH EXPERIMENT WILL COMMENCE UPON THE DATE THE NAMEPLATES
ARE PROVIDED TO THE
VOLUNTEERS.
5. THE TEST WILL ONLY BE IMPLEMENTED AFTER ALL AFFECTED EMPLOYEES
HAVE HAD SUFFICIENT OPPORTUNITY TO HAVE THEIR NAMES REMOVED FROM THE
CURRENT PHONE DIRECTORY IN THEIR AREA.
6. ANY MANDATORY USE OF NAME TAGS WILL INCLUDE ONLY THE FIRST NAME
AND LAST INITIAL.
7. EMPLOYEES HAVE THE OPTION OF USING A PSEUDONYM ON THE NAMEPLATE.
8. THE EMPLOYER WILL PROVIDE GROMMETS AND NECESSARY ALTERATIONS UPON
REQUEST ON CLOTHING TO WHICH NAMEPLATES WILL BE ATTACHED.
(PORTIONS OF PROPOSAL IN DISPUTE ARE UNDERSCORED.)
QUESTIONS HERE BEFORE THE AUTHORITY.
THE QUESTION IS WHETHER THE UNION'S PROPOSAL RELATING TO THE WEARING
OF NAMEPLATES BY BARGAINING UNIT EMPLOYEES WOULD VIOLATE SECTION 7106(B)
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS (FSLMR) STATUTE AS
ALLEGED BY THE AGENCY. /1/
OPINION
CONCLUSION: THE PROPOSAL WOULD VIOLATE SECTION 7106(B) OF THE FSLMR
STATUTE ONLY INSOFAR AS IT MAKES WEARING A NAMEPLATE "VOLUNTARY." THE
REMAINDER OF THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN UNDER THE
STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.8 OF THE AUTHORITY'S
RULES AND REGULATIONS (44 FED.REG. 44740 ET SEQ.(1979)), THE AGENCY'S
ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
BECAUSE IT VIOLATES SECTION 7106(B) IS SUSTAINED IN PART AND SET ASIDE
IN PART. /2/
REASONS: THE RECORD INDICATES THAT THE DISPUTE AROSE AFTER THE
ACTIVITY DECIDED TO REPLACE ITS EXISTING POLICY OF NOT REQUIRING
UNIFORMED PERSONNEL TO WEAR NAMEPLATES /3/ WITH A ONE YEAR TEST PROGRAM
REQUIRING ALL UNIFORMED CUSTOMS OFFICERS TO WEAR NAMEPLATES AS PART OF
THE OFFICIAL UNIFORM. THE STATED PURPOSE OF THE NAMEPLATE REQUIREMENT
IS TO "PERSONALIZE THE CUSTOMS SERVICE AND TO FACILITATE THE PUBLIC'S
DEALINGS WITH UNIFORMED OFFICERS." /4/ THE AGENCY ASSERTS THAT THE NEW
REQUIREMENT CONSTITUTES MANAGMENT'S CHOICE OF THE "MEANS OF PERFORMING
WORK" UNDER SECTION 7106(B)(1) OF THE STATUTE /5/ AND CONTENDS THE
PROPOSAL VIOLATES THAT SECTION. THE UNION CLAIMS THAT MANDATORY USE OF
NAMEPLATES WILL HAVE A SERIOUS ADVERSE IMPACT ON BARGAINING UNIT
EMPLOYEES. IN THIS REGARD, IT ASSERTS THAT ITS PROPOSAL IS CONSISTENT
WITH THE OBJECTIVES OF THE AGENCY IN INSTITUTING THE EXPERIMENTAL
REQUIREMENT TO USE NAMEPLATES AND MERELY PROVIDES FOR NEGOTIATIONS ON
APPROPRIATE ARRANGEMENTS, UNDER SECTION 7106(B)(3) OF THE STATUTE, FOR
EMPLOYEES WHO PERCEIVE THAT THEY WILL BE ADVERSELY AFFECTED BY THE
EXERCISE OF MANAGEMENT RIGHTS. /6/ THE VARIOUS PORTIONS OF THE PROPOSAL
ARE EXAMINED BELOW.
SECTION 3. (FIRST SENTENCE): THIS PORTION PROVIDES THAT
PARTICIPATION IN THE TEST PROGRAM BY BARGAINING UNIT EMPLOYEES WILL BE
VOLUNTARY. IT IS ESSENTIALLY CONCERNED, THEREFORE, WITH WHETHER
EMPLOYEES WILL PARTICIPATE AT ALL IN THE PROGRAM. THE AUTHORITY AGREES
WITH THE AGENCY'S CONTENTION THAT THE REQUIREMENT FOR UNIFORMED
EMPLOYEES TO WEAR NAMEPLATES AS PART OF THE UNIFORM ON AN EXPERIMENTAL
BASIS CONSTITUTES MANAGEMENT'S CHOICE OF THE "MEANS OF PERFORMING WORK"
UNDER SECTION 7106(B)(1) OF THE STATUTE. IN THIS CONNECTION, THE
UNION'S CONTENTION THAT THE PROPOSAL PROVIDES APPROPRIATE ARRANGEMENTS
FOR EMPLOYEES WHO WOULD BE ADVERSELY AFFECTED BY THE AGENCY'S
ESTABLISHING THE EXPERIMENTAL REQUIREMENT TO WEAR NAMEPLATES CLEARLY IS
WITHOUT MERIT.
THE STATUTE DOES NOT DEFINE THE TERM "MEANS." CONSISTENT WITH THE
GENERAL RULES OF STATUTORY CONSTRUCTION, /7/ WORDS IN THE STATUTE ARE
GIVEN THEIR COMMON MEANING UNLESS A CONTRARY LEGISLATIVE INTENT IS
INDICATED. THERE IS NOTHING IN THE LANGUAGE OF THE STATUTE OR IN THE
RELEVANT LEGISLATIVE HISTORY WHICH SUGGESTS THAT THE TERM "MEANS" AS
USED IN SECTION 7106(B)(1) SHOULD BE GIVEN ANY MEANING OTHER THAN THAT
COMMONLY ASCRIBED TO IT. IN THIS REGARD, THE COMMON MEANING OF THE TERM
"MEANS," ACCORDING TO THE DICTIONARY, IS, IN ESSENCE, ANYTHING USED TO
ATTAIN, OR MAKE MORE LIKELY THE ATTAINMENT OF, A DESIRED END. /8/ THUS,
IN THE CONTEXT OF SECTION 7106(B)(1), IT REFERS TO ANY INSTRUMENTALITY,
INCLUDING AN AGENT, TOOL, DEVICE, MEASURE, PLAN, OR POLICY USED BY THE
AGENCY FOR THE ACCOMPLISHING OR THE FURTHERING OF THE PERFORMANCE OF ITS
WORK.
UNDER THE FOREGOING DEFINITION, THE ACTIVITY'S REQUIREMENT THAT
UNIFORMED EMPLOYEES WEAR NAMEPLATES WHILE PERFORMING DUTIES AS CUSTOMS
OFFICERS IS A DECISION AS TO THE "MEANS" OF PERFORMING THE AGENCY'S
WORK. THE MISSION OF THE CUSTOMS SERVICE IS TO COLLECT REVENUES FROM
IMPORTS AND ENFORCE CUSTOMS AND RELATED LAWS. AS THE CUSTOMS SERVICE
INDICATES, THE WORK OF ITS OFFICERS IN CARRYING OUT THE AGENCY'S MISSION
INVOLVES DAILY CONTACT WITH THE IMPORTING COMMUNITY AND THE TRAVELING
PUBLIC. BASED ON THE RECORD HEREIN, IT APPEARS THAT, IN ORDER TO
ENCOURAGE EMPLOYEE COURTESY TOWARD THE PUBLIC, AND THEREBY TO FACILITATE
THE COOPERATION OF THE PUBLIC, THE ACTIVITY DECIDED TO "PERSONALIZE" THE
RELATIONSHIP BETWEEN THE CUSTOMS OFFICERS AND THE PUBLIC BY UNDERTAKING
THE EXPERIMENTAL PROGRAM REQUIRING ITS EMPLOYEE OFFICERS TO WEAR
NAMEPLATES. AS SUCH, THE NAMEPLATES CONSTITUTE A "MEANS" OF PERFORMING
THE WORK OF THE AGENCY; THAT IS, THEY ARE AN INSTRUMENT USED TO
ACCOMPLISH THAT ASPECT OF THE WORK OF A CUSTOMS OFFICER WHICH INVOLVES
CONTACT WITH THE PUBLIC.
THE NEXT QUESTION, THEN, IS WHETHER THAT PORTION OF THE PROPOSAL
PROVIDING FOR VOLUNTARY PARTICIPATION IN THE NAMEPLATE TEST PROGRAM
WOULD VIOLATE THE AGENCY'S RIGHT TO SELECT THE USE OF NAMEPLATES AS A
MEANS OF PERFORMING WORK OR MERELY WOULD ESTABLISH AN APPROPRIATE
ARRANGEMENT FOR EMPLOYEES ADVERSELY AFFECTED THEREBY.
IN THIS REGARD, SECTION 7106(B)(1) OF THE STATUTE EXPRESSLY PROVIDES
THAT NEGOTIATIONS ON THE MEANS OF PERFORMING WORK ARE "AT THE ELECTION
OF THE AGENCY." /9/ THE JOINT EXPLANATORY STATEMENT OF THE COMMITTEE ON
CONFERENCE CONTAINED IN THE CONFERENCE REPORT THAT ACCOMPANIED THE
VERSION OF THE BILL WHICH WAS ENACTED AND SIGNED INTO LAW EMPHASIZED
THAT WHETHER BARGAINING TAKES PLACE ON THE METHODS AND MEANS OF
PERFORMING WORK IS SOLELY WITHIN THE DISCRETION OF THE AGENCY. /10/
HOWEVER, SECTION 7106(B)(3) OF THE STATUTE PROVIDES THAT AGENCY
MANAGEMENT HAS A DUTY TO BARGAIN ON APPROPRIATE ARRANGEMENTS FOR
EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE OF ITS RESERVED
AUTHORITY. THE RELEVANT LEGISLATIVE HISTORY OF THE STATUTE REFLECTS THE
INTENT OF CONGRESS THAT NEGOTIATIONS ON SUCH ARRANGEMENTS SHOULD NOT
PREVENT THE AGENCY FROM TAKING THE ACTION INVOLVED. SPECIFICALLY, THE
COMMITTEE ON CONFERENCE, IN DEVELOPING THE VERSION OF THE BILL WHICH WAS
ENACTED AND SIGNED INTO LAW, DID NOT ADOPT THE LANGUAGE OF THE SENATE
BILL (S. 2640) PROVIDING THAT NEGOTIATIONS ON "PROCEDURES" AND "IMPACT"
SHALL NOT UNREASONABLY DELAY AND SHALL NOT HAVE THE EFFECT OF NEGATING
THE EXERCISE OF MANAGEMENT'S RESERVED AUTHORITY. /11/ RATHER, AS THE
COMMITTEE EMPHASIZED IN THE CONFERENCE REPORT, NEGOTIATIONS ON SUCH
MATTERS SHOULD NOT PREVENT THE AGENCY FROM ACTING AT ALL. /12/ THUS, A
DETERMINATION AS TO WHETHER THIS PORTION OF THE PROPOSAL IS WITHIN THE
AGENCY'S DUTY TO NEGOTIATE ON APPROPRIATE ARRANGEMENTS DEPENDS UPON A
FINDING AS TO WHETHER IT WOULD PREVENT THE AGENCY FROM TAKING THE
ACTION, I.E., EXERCISING THE MANAGEMENT RIGHT, INVOLVED. /13/
BY PERMITTING EMPLOYEES TO CHOOSE WHETHER TO PARTICIPATE, THE
PROPOSAL WOULD ALLOW INDIVIDUAL EMPLOYEES TO DETERMINE WHETHER AGENCY
MANAGEMENT COULD ACT AT ALL TO IMPLEMENT THE TEST PROGRAM. IT WOULD, IN
EFFECT, EMPOWER EMPLOYEES TO NULLIFY THE EXPERIMENT. CONSEQUENTLY, THIS
PORTION OF THE PROPOSAL WOULD NOT CONSTITUTE AN APPROPRIATE ARRANGEMENT,
WITHIN THE MEANING OF SECTION 7106(B)(3), FOR AGENCY EMPLOYEES ADVERSELY
AFFECTED BY MANAGEMENT'S EXERCISE OF ITS RIGHT TO DETERMINE THE MEANS OF
PERFORMING WORK BUT WOULD, INSTEAD, PREVENT THE AGENCY FROM ACTING AT
ALL. BASED ON THE FOREGOING, THE AGENCY ALLEGATION THAT THIS PORTION OF
THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SUSTAINED.
SECTION 3 (SECOND SENTENCE); SECTION 6; AND SECTION 7: EACH OF
THESE DISPUTED PORTIONS OF THE PROPOSAL CARRIES WITH IT AN ASSUMPTION
THAT EMPLOYEES WILL WEAR NAMEPLATES AS DIRECTED BY THE ACTIVITY. THE
EFFECT OF THESE PORTIONS PRINCIPALLY IS TO AVOID POTENTIAL ADVERSE
EFFECTS ON UNIT EMPLOYEES, WHICH ARE PERCEIVED TO EXIST, BY REQUIRING
THE USE ON THE NAMEPLATES OF IDENTIFYING SYMBOLS WHICH WOULD NOT REVEAL
FULLY THE IDENTITY OF THE EMPLOYEE INVOLVED. THE ADVERSE EFFECTS SOUGHT
TO BE AVOIDED, AS ALREADY INDICATED, RELATE TO THE POSSIBLE LOSS OF
OFF-THE-JOB PERSONAL PRIVACY BY EMPLOYEES AND THEIR FAMILIES AND TO
HARRASSMENT, THREATS, RETALIATION AND PHYSICAL INJURY AT THE HANDS OF
MEMBERS OF THE TRAVELING PUBLIC OR THE IMPORTING COMMUNITY WITH WHOM THE
EMPLOYEES HAVE HAD DEALINGS. THE VARIETY OF IDENTIFYING SYMBOLS PROPOSED
INCLUDES THE EMPLOYEES' FIRST AND LAST NAMES, COMBINATIONS OF ONLY FIRST
OR ONLY LAST NAMES WITH INITIALS, AND PSEUDONYMS.
AS PREVIOUSLY MENTIONED, THE EXPRESS PURPOSE OF THE ACTIVITY IN
DIRECTING NAMEPLATES TO BE WORN BY UNIFORMED EMPLOYEES AS A MEANS OF
PERFORMING WORK IS TO PERSONALIZE THE CUSTOMS SERVICE AND FACILITATE
DEALINGS WITH UNIFORMED OFFICERS BY THE PUBLIC, APPARENTLY BY ENABLING
THE LATTER TO IDENTIFY CUSTOMS OFFICIALS BY A NAME RATHER THAN MERELY BY
A BADGE NUMBER. THERE IS NO SHOWING BY THE ACTIVITY IN THIS CASE, NOR
IS IT OTHERWISE APPARENT TO THE AUTHORITY, THAT THE ACTIVITY'S STATED
PURPOSE WOULD BE ABLE TO BE ACHIEVED ONLY IF A PARTICULAR FORM OF AN
EMPLOYEE'S NAME WERE TO APPEAR ON HIS OR HER NAMEPLATE, OR ONLY IF AN
EMPLOYEE'S ACTUAL NAME AS CONTRASTED WITH A PSEUDONYM, AS PROPOSED, WERE
SO TO APPEAR. THUS, IT HAS NOT BEEN SHOWN AND IS NOT APPARENT THAT
NEGOTIATIONS ON THE FORMATS PROPOSED BY THE UNION WOULD PREVENT THE
ACTIVITY FROM REQUIRING NAMEPLATES TO BE WORN FOR THE PARTICULAR PURPOSE
INTENDED. IN THESE CIRCUMSTANCES, THE DISPUTED PORTIONS OF THE PROPOSAL
PRESENTLY UNDER THE CONSIDERATION WOULD CONSTITUTE APPROPRIATE
ARRANGEMENTS FOR EMPLOYEES SUBJECT TO BEING ADVERSELY AFFECTED BY
MANAGEMENT'S ACTION WITHIN THE MEANING OF SECTION 7106(B)(3) OF THE
STATUTE. /14/ CONSEQUENTLY, THEY DO NOT VIOLATE MANAGEMENT'S RIGHTS
UNDER SECTION 7106(B)(1) OF THE STATUTE AND ARE WITHIN THE DUTY TO
BARGAIN.
SECTION 5: THIS PORTION OF THE PROPOSAL WOULD ALLOW THE EMPLOYEES
INVOLVED TIME TO HAVE THEIR NAMES DELETED FROM LOCAL TELEPHONE
DIRECTORIES BEFORE THE NAMEPLATE TEST PROGRAM COULD BE PUT INTO EFFECT,
IN ORDER TO PROTECT THEMSELVES, AND THEIR FAMILIES, AS DISCUSSED
PREVIOUSLY. THE AGENCY PRINCIPALLY URGES THAT THIS PROPOSAL WOULD DELAY
IMPLEMENTING THE TEST PROGRAM FOR AN UNREASONABLY LONG TIME-- 6 TO 18
MONTHS. IT CONTENDS THAT THIS UNREASONABLE DELAY WOULD HAVE THE EFFECT
OF NEGATING THE AUTHORITY RESERVED TO MANAGEMENT UNDER SECTION
7106(B)(1) OF THE STATUTE TO REQUIRE THE WEARING OF NAMEPLATES; AND,
THEREFORE, CONCLUDES THAT THIS PART OF THE PROPOSAL IS NOT WITHIN THE
DUTY TO BARGAIN. ASSUMING THAT THE PROPOSAL WOULD RESULT IN A DELAY OF
6-18 MONTHS BEFORE THE PROGRAM COULD BE IMPLEMENTED, AS THE AGENCY
ASSERTS, IN THE CIRCUMSTANCES OF THE PRESENT CASE THE MANAGEMENT RIGHTS
PROVISION OF THE STATUTE WOULD NOT, THEREBY, BE VIOLATED.
THE STATUTE AND ITS RELEVANT HISTORY DO NOT IN ANY MANNER REFLECT THE
CONGRESSIONAL INTENT THAT A DELAY, AS THE AGENCY HERE CLAIMS WOULD IN
EFFECT NEGATE ITS MANAGEMENT RIGHTS, WOULD RENDER A PROPOSAL OUTSIDE THE
DUTY TO BARGAIN. RATHER, AS DISCUSSED EARLIER IN THIS OPINION (SEE
FOOTNOTES 11 AND 12 AND ACCOMPANYING TEXT) THE RELEVANT LEGISLATIVE
HISTORY OF THE STATUTE REFLECTS THE INTENT THAT NEGOTIATIONS ON THE
PROCEDURES MANAGEMENT WILL OBSERVE IN EXERCISING ITS RESERVED RIGHTS
MUST NOT PREVENT THE AGENCY FROM ACTING AT ALL. IN THIS REGARD, AS
ALREADY INDICATED, SUCH LEGISLATIVE HISTORY EXPRESSLY CHRONICLES THE
DELIBERATE DELETION OF LANGUAGE CONTAINED IN THE SENATE BILL (S. 2640)
WHICH PROVIDED THAT NEGOTIATIONS ON PROCEDURES GOVERNING THE EXERCISE OF
MANAGEMENT RIGHTS "MAY NOT HAVE THE EFFECT OF ACTUALLY NEGATING THE
AUTHORITY RESERVED TO THE AGENCY . . . ." /15/ FINALLY, THE LEGISLATIVE
HISTORY REFLECTS THE FURTHER INTENT THAT EXCLUSIVE REPRESENTATIVES MUST
BE ALLOWED TO NEGOTIATE FULLY, UNDER SECTION 1706(B)(2) AND (3) OF THE
STATUTE, ON PROCEDURES TO BE OBSERVED BY MANAGEMENT IN EXERCISING
RESERVED RIGHTS UNDER THE STATUTE AND ON APPROPRIATE ARRANGEMENTS FOR
EMPLOYEES ADVERSELY AFFECTED BY THE EXERCISE OF SUCH RIGHTS. /16/
TURNING NOW TO THE DISPUTED PROPOSAL HEREIN, WHICH WOULD ALLOW
EMPLOYEES TIME TO REMOVE THEIR NAMES FROM TELEPHONE DIRECTORIES, THE
RECORD BEFORE THE AUTHORITY INDICATES THAT IT IS INTENDED TO AVOID, AND
IS IN SUBSTANCE REASONABLY RELATED TO AVOIDING, THE ADVERSE IMPACT,
PERCEIVED BY THE UNION, OF MANAGEMENT'S REQUIRING SUCH EMPLOYEES TO WEAR
NAMEPLATES. FURTHERMORE, THE RECORD DOES NOT SHOW THAT THE PROPOSAL
WOULD PREVENT THE AGENCY FROM ACTING AT ALL TO IMPLEMENT THE NAMEPLATE
EXPERIMENT. ON THE CONTRARY, THE AGENCY INDICATES THAT AFTER A DELAY OF
FROM 6-18 MONTHS IT COULD IMPLEMENT THE EXPERIMENT. /17/ CONSEQUENTLY,
BASED ON THE MEANING OF THE STATUTE AS REFLECTED IN ITS LEGISLATIVE
HISTORY (EVEN ASSUMING THAT, AS THE AGENCY ASSERTS, A DELAY OF 6-18
MONTHS IN IMPLEMENTING THE NAMEPLATE EXPERIMENT WOULD RESULT) THE
PROPOSAL WOULD NOT VIOLATE SECTION 7106(B) OF THE STATUTE.
SECTION 3 (LAST SENTENCE): THIS PORTION OF THE PROPOSAL AT ISSUE
ESSENTIALLY SEEKS TO PROVIDE A ROLE FOR THE UNION IN THE PROCESS OF
EVALUATING THE RESULTS OF THE EXPERIMENTAL WEARING OF NAMEPLATES. THE
DISPUTE CENTERS ON THE PRECISE NATURE OF THE ROLE CONTEMPLATED BY THE
PROPOSAL. THE AGENCY ASSERTS, IN THIS REGARD, THAT THE PROPOSAL WOULD
"MANDATE UNION PARTICIPATION IN THE EVALUATION OF THE NAMEPLATE
EXPERIMENT, AND IN SUBSEQUENT DECISIONS TO USE OR NOT USE THEM ON A
PERMANENT BASIS." THE UNION, ON THE OTHER HAND, INDICATES THAT ITS
UNDERLYING CONCERN RELATES ONLY TO THE "VALIDITY" OF THE EXPERIMENT
WHICH WILL NOT PROVIDE FOR THE COMPILATION OF MEASURABLE STATISTICS FOR
COMPARISON PURPOSES.
THEREFORE, THE UNION STATES, THE PROPOSAL FOR THE UNION TO MEET WITH
THE EMPLOYER TO EVALUATE THE RESULTS OF THE EXPERIMENT MERELY IS
INTENDED "TO VERIFY THAT A TEST IS ACTUALLY BEING IMPLEMENTED AND THAT
THE RESULTS WILL BE EVALUATED ON AN OBJECTIVE COMPARISON OF DATA RATHER
THAN CONJECTURE ON THE PART OF THE AGENCY."
THUS, UNDER THE UNION'S INTERPRETATION OF ITS OWN PROPOSAL, WHICH
INTERPRETATION IS ADOPTED FOR PURPOSES OF THIS DECISION, THE UNION'S
ROLE WOULD NOT ENCOMPASS PARTICIPATION EITHER IN THE SUBSTANCE OF THE
EVALUATION ITSELF, OR IN THE ACTUAL DECISION CONCERNING WHETHER TO USE
NAMEPLATES IN THE FUTURE.
RATHER, THE UNION WOULD ASSUME THE ROLE OF A REVIEWER TO ASSURE
ITSELF OF THE VALIDITY OF THE TEST PROCESS AND THE OBJECTIVITY OF THE
EVALUATION OF ITS RESULTS MADE BY THE AGENCY. SUCH A NON-CONTROLLING,
NON-SUBSTANTIVE ROLE IN THE TEST-EVALUATION AND DECISIONMAKING PROCESS
IS PARTICIPATORY IN A MANNER WHICH, CLEARLY, DOES NOT PREVENT THE AGENCY
FROM ACTING PURSUANT TO ALL RIGHTS RESERVED TO MANAGEMENT UNDER THE
STATUTE.
CONSEQUENTLY, BASED ON THE STATED INTENT OF THE UNION AS TO THE
MEANING AND PURPOSE OF ITS PROPOSAL AS DISCUSSED ABOVE, THE PROPOSAL
DOES NOT VIOLATE MANAGEMENT'S RESERVED RIGHTS UNDER SECTION 7106(B) OF
THE STATUTE AND IS WITHIN THE DUTY TO BARGAIN.
ISSUED, WASHINGTON, D.C., DECEMBER 13, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY /18/
/1/ THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, SEC.
7106 (92 STAT. 1198) PROVIDES IN RELEVANT PART:
SEC. 7106. MANAGEMENT RIGHTS
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
(1) AT THE ELECTION OF THE AGENCY, . . . ON THE TECHNOLOGY, METHODS,
AND MEANS OF
PERFORMING WORK;
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION; OR
(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY
AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
/2/ IN SO DECIDING THAT PORTIONS OF THE PROPOSAL ARE WITHIN THE DUTY
TO BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
PROPOSAL.
/3/ DEPARTMENT OF THE TREASURY, BUREAU OF CUSTOMS CIRCULAR PER-2-IC X
ADM-3, DATED AUGUST 15, 1972, SUBJECT: PERSONNEL; DISCLOSURE OF
IDENTITY. IN ESSENCE, THE CIRCULAR INDICATES THAT NAMEPLATES ARE NOT IN
THE BEST INTERESTS OF THE AGENCY OR EMPLOYEES BECAUSE THEY "MIGHT RESULT
IN THREATENING OR HARASSING TELEPHONE CALLS TO THE EMPLOYEE AND HIS
FAMILY AT HOME." IT ALSO DIRECTS EMPLOYEES TO FURNISH THEIR NAMES ONLY
UPON REQUEST WHEN, IN THEIR JUDGMENT, THE REQUESTOR DOES NOT WANT THE
NAME FOR THE PURPOSE OF HARASSMENT OR RETALIATION AGAINST THE EMPLOYEE
OR HIS FAMILY.
/4/ PROPOSED POLICIES AND PROCEDURES MANUAL SUPPLEMENT (UNNUMBERED),
SUBJECT: NAMEPLATES FOR UNIFORMED PERSONNEL, TRANSMITTED TO THE UNION
BY THE ASSISTANT REGIONAL COMMISSIONER (ADMINISTRATION) OF THE ACTIVITY
BY LETTER DATED OCTOBER 12, 1978,
/5/ NOTE 1, SUPRA.
/6/ ID. THE ADVERSE EFFECTS PERCEIVED BY THE UNION ESSENTIALLY ARE
THOSE REFERENCED IN NOTE 3, SUPRA.
/7/ SEE, E.G., MERCANTILE BANK AND TRUST CO. V. UNITED STATES, 441 F
2D 364 (8TH CIR. 1971).
/8/ SEE, E.G., WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY(1976)
WHICH STATES IN RELEVANT PART AS FOLLOWS:
(S)OMETHING BY THE USE OR HELP OF WHICH A DESIRED END IS ATTAINED OR
MADE MORE LIKELY; AN
AGENT, TOOL, DEVICE, MEASURE, PLAN, OR POLICY FOR ACCOMPLISHING OR
FURTHERING A PURPOSE
. . . .
/9/ NOTE 1, SUPRA.
/10/ THE COMMITTEE STATED AS FOLLOWS:
1. THE SENATE (SECTION 7218(A)(2)(E)) PROHIBITS NEGOTIATIONS ON THE
METHODS AND MEANS BY
WHICH AGENCY OPERATIONS ARE TO BE CONDUCTED. THE HOUSE PERMITS-- BUT
DOES NOT REQUIRE-- THE
AGENCY TO NEGOTIATE ON SUCH MATTERS (HOUSE SECTION 7106(B)(1)). THE
SENATE RECEDES. THE
CONFEREES WISH TO EMPHASIZE, HOWEVER, THAT NOTHING IN THE BILL IS
INTENDED TO REQUIRE AN
AGENCY TO NEGOTIATE ON THE METHODS AND MEANS BY WHICH AGENCY
OPERATIONS ARE TO BE CONDUCTED.
. . . .
IN SUM, THE CONFERENCE REPORT FULLY PRESERVES THE RIGHT OF MANAGEMENT
TO REFUSE TO BARGAIN
ON "METHODS AND MEANS" AND TO TERMINATE BARGAINING AT ANY POINT ON
SUCH MATTERS EVEN IF IT
INITIALLY AGREES TO NEGOTIATIONS.
S. REP. NO. 95-1272, 95TH CONG., 2D SESS. 153-4(1978).
/11/ THE LANGUAGE IN THE SENATE BILL (S. 2640) WHICH WAS NOT ADOPTED
PROVIDED AS FOLLOWS:
SEC. 7218. BASIC PROVISIONS OF AGREEMENTS
. . . .
(B) NOTHING IN SUBSECTION (A) OF THIS SECTION SHALL PRECLUDE THE
PARTIES FROM NEGOTIATING--
(1) PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN EXERCISING ITS
AUTHORITY TO DECIDE OR ACT
IN MATTERS RESERVED UNDER SUCH SUBSECTION; OR
(2) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
IMPACT OF MANAGEMENT'S
EXERCISING ITS AUTHORITY TO DECIDE OR ACT IN MATTERS RESERVED UNDER
SUCH SUBSECTION. EXCEPT
THAT SUCH NEGOTIATIONS SHALL NOT UNREASONABLY DELAY THE EXERCISE BY
MANAGEMENT OF ITS
AUTHORITY TO DECIDE OR ACT, AND SUCH PROCEDURES AND ARRANGEMENTS
SHALL BE CONSISTENT WITH THE
PROVISIONS OF ANY LAW OR REGULATION DESCRIBED IN 7215(C) OF THIS
TITLE, AND SHALL NOT HAVE THE
EFFECT OF NEGATING THE AUTHORITY RESERVED UNDER SUBSECTION (A).
/12/ S. REP. NO. 95-1272, 95TH CONG., 2D SESS. 158(1978) STATES AS
FOLLOWS:
(T)HE CONFEREES WISH TO EMPHASIZE THAT NEGOTIATIONS ON SUCH
PROCEDURES SHOULD NOT BE
CONDUCTED IN A WAY THAT PREVENTS THE AGENCY FROM ACTING AT ALL, OR IN
A WAY THAT PREVENTS THE
EXCLUSIVE REPRESENTATIVE FROM NEGOTIATING FULLY ON PROCEDURES.
/13/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1999 AND
ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW
JERSEY, CASE NO. O-NG-20, 2 FLRA NO. 16, (NOV. 29, 1979), REPORT NO. .
/14/ NOTE 1, SUPRA.
/15/ NOTE 11 AND ACCOMPANYING TEXT, SUPRA.
/16/ NOTE 12, SUPRA.
/17/ WHILE NOT A CONTROLLING CONSIDERATION, IT DOES NOT APPEAR THAT
DETRIMENT TO THE AGENCY, WHICH IT GENERALLY ALLEGES WILL RESULT FROM THE
DELAY IN IMPLEMENTING THE EXPERIMENTAL CHANGE, OUTWEIGHS THE POSSIBILITY
OF SERIOUS ADVERSE AFFECTS ON EMPLOYEES IN THE UNIT WHICH IT IS CLAIMED
BY THE UNION WILL RESULT IF EMPLOYEES CANNOT HAVE AN OPPORTUNITY TO TAKE
ACTION TO MITIGATE THE RISK, WHEN THE CHANGE WOULD AFFECT A POLICY WHICH
HAS EXISTED TO PROTECT EMPLOYEES SINCE, AT LEAST, 1972.
/18/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
STATES SENATE AS A MEMBER OF THE AUTHORITY.