NTEU Chapter 229 and HHS Headquarters (Authority decision, July 24, 1986)

Final FLRA decision. The Authority dismisses the negotiability petition. An aggrieved person may petition an appropriate United States court of appeals for review within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

During relocation bargaining, NTEU proposed adequate telephone access for employees whose duties required it. HHS argued that the proposal would constrain its decisions about the number, type, and location of telephones used for work. The Authority found that the proposal concerned the technology of performing work, a subject bargainable only at the agency's election. The union also supplied no record basis showing an appropriate arrangement for adverse effects, so the Authority dismissed the petition.

Decision snapshot

• Authority: 5 U.S.C. § 7106(b)(1), 5 U.S.C. § 7106(b)(3).
• Outcome: Telephone access proposal outside mandatory bargaining; petition dismissed.
• Key point: The proposal would constrain technology choices, and the record did not support the claimed arrangement.

Full text (FLRA public release)

[ v22 p698 ]

22:0698(77)NG

The decision of the Authority follows:

22 FLRA No. 77

NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 229
Union

and

DEPARTMENT OF HEALTH AND
HUMAN SERVICES, HEADQUARTERS
Agency

Case No. 0-NG-1188

DECISION AND ORDER ON NEGOTIABILITY ISSUE

I. Statement of the Case

This case is before the Authority because of 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 the following Union proposal. The proposal was presented during negotiations concerning the relocation of bargaining unit employees:

Management agrees that bargaining unit employees will have adequate access to telephones in the performance of their official duties if such is required as part of the employees' duties and responsibilities to perform at an acceptable level.

II. Positions of the Parties

In its petition, the Union asserts that the proposal does not concern the technology of performing work since it is limited to seeking adequate access to telephones only if use of them is required by the Agency as part of the employees' duties. It also contends that the proposal is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute for employees adversely affected by their relocation.

The Agency argues that the proposal interferes with its right under section 7106(b)(1) to determine the technology of performing work. It contends that, despite the Union's representation that the proposal leaves to the Agency the determination as to whether to use telephones, it would nevertheless have the practical effect of requiring negotiation over the numbers, types and locations of telephones provided. It would also subject the Agency's decisions on these matters to arbitral review. For these reasons, the Agency argues that the proposal is not within the duty to bargain.

The Union did not file a response to the Agency's statement of position.

III. Analysis and Conclusions

A. The Proposal Concerns the Technology of Performing Work

The Authority has previously found that a proposal which required that adequate telephones be provided for the conduct of government business was not within the duty to bargain because it concerned the technology of performing work. American Federation of Government Employees, Local 644, AFL-CIO and U.S. Department of Labor, Mine Health and Safety Administration, Morgantown, West Virginia, 15 FLRA 902 (1984) (Proposal 3). The proposal in this case would have a similar effect as that in Mine Safety and Health Administration, Morgantown in that it would subject substantive decisions about using telephones to accomplish the Agency's work to bilateral determination. In this regard, the Union has not rebutted the Agency's contention that the proposal would intrude upon its discretion to determine the numbers, types and locations of telephones to be provided for employees. Based on the reasons expressed in Mine Safety and Health Administration, Morgantown, and the cases cited in that decision, the Authority finds that this proposal likewise concerns the technology of performing work under section 7106(b)(1), and is bargainable only at the election of the Agency.

B. The Record Doesn't Establish That the Proposal Concerns

an Appropriate Arrangement

A proposal is negotiable as an appropriate arrangement under section 7106(b)(3), if it would not excessively interfere with management's rights under section 7106. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986). In applying this standard the Authority considers, as a threshold matter and based on the parties' submissions, whether the proposal is intended to be an arrangement for employees adversely affected by management's exercise of its rights. In this case, the Union has offered no support whatsoever for its assertion that the proposal concerns an appropriate arrangement. We have no information concerning the nature and extent of the adverse effects, if any, on employees which might result from their relocation. Additionally, the record provides no basis for assessing how this proposal would address or ameliorate those adverse effects. See American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986) (Union Proposal 3). Consequently, we cannot conclude that this proposal involves an appropriate arrangement under section 7106(b)(3).

IV. Order

Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed.

Issued, Washington, D.C., July 24, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY