American Federation of Government Employees, Local 3601 and U.S. Department of Health and Human Services, Public Health Service, Indian Hospital, Claremont, Oklahoma (Authority decision, June 29, 1990)

Final FLRA decision, later rescinded. The Authority rescinded this bargaining order on November 14, 1990 after finding a service defect and reopened the negotiability case.

Plain-English summary

AFGE Local 3601 proposed a private office for the Claremont Indian Hospital employee who kept medical staff quality assurance records. The employee had been moved to a shared area separated by partitions that did not block sound, raising the union's concern about confidential discussions. The hospital alleged that the proposal was nonnegotiable but gave no reason and filed no statement of position. The Authority held that office-space arrangements are negotiable unless an agency shows a conflict with applicable law or regulation. With no such showing here, it ordered bargaining on the proposal while making no judgment about its merits. On reconsideration, the Authority rescinded this order because the corrected petition had not been served on the agency’s representative and reopened the case.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. § 7105(a)(2)(E).
• Outcome: Proposal found negotiable here; the Authority later rescinded this order and reopened the appeal.
• Key point: This original bargaining order was rescinded after a service defect was found.

Full text (FLRA public release)

[ v36 p224 ]
36:0224(26)NG

The decision of the Authority follows:

36 FLRA No. 26

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 3601

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN
SERVICES

PUBLIC HEALTH
SERVICE

INDIAN HOSPITAL

CLAREMONT, OKLAHOMA

(Agency)

0-NG-1799

DECISION AND ORDER ON A NEGOTIABILITY
ISSUE

June 29, 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 by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of one proposal requiring the Agency to provide a private office for the Medical Staff Quality Assurance employee. The Agency did not file a statement of position and, in its allegation of nonnegotiability, did not provide any reasons in support of its allegation. For the following reasons, we find that the proposal is negotiable.

II. Proposal

The Employer agrees to provide a private office for the Medical Staff Quality Assurance employee.

III. Position of the Union

The Union's proposal addresses the work location of the Medical Staff Quality Assurance (MSQA) employee. According to the petition, the Agency moved the MSQA employee from a private office into the Medical Records Department where there are three other desks. Partitions separate the four desks but the partitions "obstruct vision, not sound." Petition for Review at 2.

The Union states that the MSQA employee initiates and maintains confidential records identifying areas of patient care that can be improved and holds discussions regarding those records. The Union asserts that the MSQA employee should have a private office because "discussing the performance of employees, who are physicians/therapists, should not be overheard by other hospital employees." Id. at 1-2. The Union argues that in her current location the MSQA employee finds it "ethically difficult" to discuss the records and claims that under these conditions, "the physicians' privacy is being unnecessarily violated." Id. at 2.

The Union notes that the Agency told the MSQA employee she was "physically moved for supervisory purposes" so that she would be located in the Medical Records Department where her new supervisor and other employees supervised by the new supervisor are located. Id. However, the Union states that the supervisor "has been moved out of her office in Medical Records to an office in Administration." Id. Because the MSQA employee's previous supervisors had offices in Administration, the Union contends that locating the MSQA employee in a private office would permit "supervision [to] be accomplished as before[.]" Id.

IV. Analysis and Conclusion

Proposals concerning reductions in office space, space allocation, and the arrangement of space concern conditions of employment and are negotiable unless an agency demonstrates that the proposals are inconsistent with applicable law or regulation. See, for example, National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 413 (1990).

The Authority has found that proposals granting employees private offices are negotiable. American Federation of Government Employees, Local 644, AFL-CIO and U.S. Department of Labor, Occupational Safety and Health Administration, 21 FLRA 658, 659-61 (1986) (Proposals 1 and 2) (proposals providing for individual offices for certain employees were found to be negotiable because the agency did not show that a relationship existed between its choice of office space design and the performance of its work). Compare Federal Union of Scientists and Engineers, National Association of Government Employees, Local R1-144 and Naval Underwater Systems Center, Newport, Rhode Island, 28 FLRA 352, 354-55 (1987) (Proposal 1) (proposal allowing employees to choose their office space was found to be nonnegotiable under section 7106(b)(1) of the Statute because the agency showed that there was a link between the location of employees in workspace and the methods and means of performing work).

Here, the Agency makes no claim, and it is not otherwise apparent, that this proposal concerning the location of the MSQA employee is inconsistent with law, Government-wide rule or regulation, or an agency regulation for which a compelling need exists. The parties bear the burden of creating a record upon which the Authority can make a decision. See National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982), affirming sub nom. 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). A party failing to meet this burden acts at its peril. Accordingly, we find that the proposal is negotiable.

V. Order

The Agency shall, upon request or as otherwise agreed to by the parties, bargain concerning the Union's proposal.(*)

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

*/ In finding that this proposal is negotiable, we make no judgment as to its merits.