American Federation of Government Employees, Local 644 and U.S. Department of Labor, Occupational Safety and Health Administration, Norfolk, Virginia (Authority decision, May 6, 1991)

Final FLRA decision. The Authority resolves a negotiability appeal. An aggrieved person may seek judicial review of this final order in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). A petition does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

OSHA planned to require field compliance staff to carry electronic pagers to receive work instructions and emergency assignments. The union proposed making pager use voluntary and removing routine call-in duties for employees who chose to use one. The Authority found that the proposals interfered with management’s ability to select methods and means of doing agency work. It also rejected the union’s procedure and appropriate arrangement arguments. The Authority dismissed the negotiability petition.

Decision snapshot

• Authority: 5 U.S.C. § 7106(b)(1); 5 U.S.C. § 7106(b)(2).
• Outcome: Union petition dismissed; voluntary pager use provisions found nonnegotiable.
• Key point: The proposed opt out would defeat the agency’s chosen communication method for field work.

Full text (FLRA public release)

[ v40 p831 ]

40:0831(65)NG

The decision of the Authority follows:

40 FLRA No. 65

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 644

(Union)

and

U.S. DEPARTMENT OF LABOR

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

NORFOLK, VIRGINIA

(Agency)

0-NG-1854

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

May 6, 1991

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). The appeal concerns the negotiability of two
subsections of a proposal relating to the Agency's
implementation of a policy providing for the mandatory use of
electronic paging devices (beepers) by bargaining unit
employees. For the following reasons, we find that the
disputed portions of the Union's proposal are nonnegotiable.
Accordingly, we will dismiss the petition for review.

II. Proposal

. . . .

2. The use of beepers will be on a voluntary basis only.

3. If the employee chooses to utilize the paging
   device, the requirement for calling in, unless paged, will be removed.

III. Positions of the Parties

A. The Agency

The Agency contends that subsections 2 and 3 are
nonnegotiable because they directly interfere with
management's right to determine the technology,
methods, and means used in performing the Agency's
work under section 7106(b)(1) of the Statute. The
Agency also argues that subsections 2 and 3 directly
interfere with management's rights to direct
employees, assign work, and determine the Agency's
internal security practices under section 7106(a) of
the Statute. The Agency also asserts that the
subsections do not constitute negotiable procedures
under section 7106(b)(2) of the Statute.

Regarding its first contention, the Agency states
that it is "implementing the mandatory use of
electronic paging devices (beepers) by compliance
staff to further [its] response to situations" that
require the Agency's presence. Agency's Statement
of Position at 2. The Agency explains that
management must communicate with its compliance
staff when they are in field locations for the
purpose of communicating work instructions,
information, and emergency assignments. The Agency
argues that the use of beepers will greatly
facilitate the communication process because, "[i]n
the past, management had to wait for the employee to
make telephone contact or management had to contact
the compliance officer by utilizing the employer's
work site telephone." Id. According to the Agency,
the use of a call-in procedure created delays in
communications between management and the compliance
staff and the Agency determined that beepers would
"be an asset in furthering the performance of the
Agency's mission[,]" by enhancing the Agency's
response time. Id.

The Agency argues that the Union's proposal,
which attempts to make the use of beepers voluntary,
is negotiable only at the election of the Agency and
the Agency has elected not to bargain. In this
regard, the Agency argues that the decision to use
beepers involves the technology, methods and means
of performing work.

The Agency also contends that the subsections
directly interfere with management's rights to
direct employees, to assign work, and to determine internal security
practices by limiting the manner in which the Agency
may monitor employee conduct or performance.

Finally, the Agency asserts that the subsections
in dispute do not constitute negotiable procedures
under section 7106(b)(2) of the Statute because they
would "excessively interfere" with the exercise of
its reserved management rights and, in certain
circumstances, "prevent management from acting at
all." Id. at 3.

B. The Union

The Union contends that the subsections in
dispute are negotiable because the "adverse impact
of the utilization of the beepers [is] bargainable."
Petition for Review at 1. The Union adds that it is
not arguing that management cannot use beepers, but
that the Agency has not demonstrated a compelling
need for the use of beepers only during the
employees' 8-hour day shift. The Union argues that
one of the purported uses of beepers is to enable
employees to respond to emergencies even though
those emergencies can occur during the other 16
hours of the day. The Union also argues that if
there were a need to immediately contact employees
for emergencies, the Agency would not have limited
the use of beepers only to the bargaining unit
employees at the Norfolk office involved herein, and
to one other office in Baltimore. The Union also
states that, notwithstanding the use of beepers,
employees are still required to call in to their
supervisors twice daily.

The Union contends that the subsections in
dispute have no bearing on the Agency's internal
security but, rather, involve "a way to contact
employees in the field[.]" Id. at 2. Moreover, the
Union asserts that the subsections do not concern
the technology of work but merely relate to a "means
to monitor an employee." Id. The Union also
contends that the Agency elected to bargain
concerning the use of beepers, as evidenced by the
fact that the Agency only declared the subsections
nonnegotiable after management gave its
counterproposals to the Union, and also because
management negotiated over other proposals that are
not here in dispute. Finally, the Union contends
that the use of beepers "is bargainable and does not
infringe upon management[']s rights under 7106(b)(1)
in any way." Id. at 3.

IV. Analysis and Conclusions

We find that the subsections in dispute are
outside the duty to bargain because they directly
interfere with the Agency's right to determine the
methods and means of performing work under section
7106(b)(1) of the Statute.(*) Additionally, the
subsections constitute neither negotiable procedures
nor appropriate arrangements under sections
7106(b)(2) and 7106(b)(3) of the Statute.

Subsection 2 of the proposal would make the use
of beepers voluntary. If an employee chooses to use
a beeper, subsection 3 would eliminate the
requirement that the employee call in, unless the
employee was responding to a page.

The Authority employs a two-part test to
determine whether a proposal directly interferes
with the methods and means of performing work.
National Treasury Employees Union, Chapter 83 and
Department of the Treasury, Internal Revenue
Service, 35 FLRA 398, 406-07 (1990) (Internal
Revenue Service). First, an agency must show a
direct and integral relationship between the
particular method or means the agency has chosen and
the accomplishment of the agency's mission. Id. at

406. Second, the agency must show that the proposal
     would directly interfere with the mission-related
     purpose for which the method or means was adopted.
     Id. As relevant to this case, the Authority has
     construed "means" as referring 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. The term "performing work"
     is intended to include those matters that directly
     and integrally relate to the agency's operations as
     a whole. Id. Additionally, for purposes of section
     7106(b)(1), the means employed need not be
     indispensable to the accomplishment of an agency's
     mission. Rather, and as interpreted in various
     court decisions, the means need only be "a matter
     that is 'used to attain or make more likely the
     attainment of a desired end' or 'used by the agency
     for the accomplishing or furthering of the
     performance of its work.'" Id. at 407-08.

Here, the Agency has established that there is a
direct and integral relationship between the use of
beepers and the accomplishment of the Agency's
mission. In this regard, it is uncontroverted that
the current procedure of maintaining telephone
contact with employees in field locations has caused
delays in communicating with these employees. The
Agency has determined that in order to enhance
response time to emergency situations, work
assignments, and to provide other information, the
use of beepers would be effective in furthering the
Agency's mission. Clearly, the ability to respond
more expeditiously to emergency and other
assignments is directly linked to the compliance
functions performed by the employees, which in turn,
serves to promote the accomplishment of the Agency's
mission.

With regard to enhanced response to emergency
situations, the Union asserts that the Agency has
made mandatory the use of beepers only during the
employees' 8 hours of duty time, that emergencies
can occur during other times of the day, and that
"management can not rationalize compelling need for
only 1/3 of the time." Petition for Review at 2.
We interpret the Union's argument as questioning the
credibility of the Agency's decision to have unit
employees use beepers only during their duty hours
in light of the fact that emergencies can occur at
any time of day. Assuming that only unit employees
would respond to emergency situations and only
during their working hours, the fact that
emergencies can occur at times outside the
employees' duty hours does not compel a conclusion
that beepers are not a means of performing work.
Moreover, in determining whether an instrumentality
constitutes a "means" within the meaning of section
7106(b)(1), an agency is not obligated to establish
a "compelling need" for the instrumentality.
Instead, the means "need only be a matter that is
'used to attain or make more likely the attainment
of a desired end' or 'used by the agency for the
accomplishing or furthering of the performance of
its work.'" Internal Revenue Service at 407.

Having found that there is a direct and integral
relationship between the use of beepers and the
accomplishment of the Agency's mission, we also find
that the Agency has established that subsections 2
and 3 would directly interfere with the Agency's
mission. As noted, subsection 2 would make the use
of beepers voluntary, while subsection 3 would
eliminate the requirement of calling in, other than
responding to a page, for those employees who elect
to use a beeper. Insofar as the Agency has
determined that beepers will enhance its response
time and, thereby, further the performance of the Agency's mission,
allowing employees the option of using a beeper by
making such use voluntary, which is the basis of
both of these subsections, directly interferes with
the purpose for which beepers were adopted.

Consequently, subsections 2 and 3 directly
interfere with the Agency's right to determine the
methods and means of performing work under section
7106(b)(1) of the Statute.

In reaching this conclusion, we reject the
Union's contention that the Agency elected to
bargain over these matters by offering
counterproposals and negotiating over other
proposals concerning the use of beepers. We find
nothing in the record that establishes the Agency
elected to bargain over the langauge of the
subsections that are before us. Instead, as the
Union notes, the Agency "eliminated union proposals

2 & 3 and stated that they were non-negotiable."

Petition for Review at 1. Therefore, neither the
Agency's offer of counterproposals nor its
negotiations as to other proposals concerning the
use of beepers warrants a finding that the Agency
elected to bargain over the particular matters here
in dispute.

We also find that this case is distinguishable
from American Federation of Government Employees,
Council of Marine Corps Locals (C-240) and U.S.
Department of the Navy, United States Marine Corps,
Washington, D.C., 39 FLRA 773 (1991) (Marine Corps
Locals), petition for review filed sub nom. U.S.
Department of the Navy, U.S. Marine Corps,
Washington, D.C. v. FLRA, No. 91-1182 (D.C. Cir.
April 18, 1991). In that case, we found negotiable
a proposal that would prevent the agency from
requiring employees to wear and respond to beepers
unless they were in a pay status. Significantly, we
found that nothing in the proposal would prohibit
the agency from requiring employees to carry and
respond to beepers. Id. at 780. We also addressed
and rejected the agency's argument that the proposal
would interfere with management's right to determine
the technology, methods, and means of performing
work. We stated that "[e]ven assuming that the
requirement to carry and respond to a beeper bears a
technological relationship to accomplishing or
furthering the performance of the [a]gency's work"
the proposal was concerned only with the pay status
of employees who were required to carry beepers.
Id. at 781-82. By contrast, the matters here in
dispute do not pertain to the employees' pay status
but, rather, to whether employees will be required
to use beepers in the first instance. Moreover,
contrary to the proposal in Marine Corps Locals, the
subsections of the proposal at issue in this case permit the use of beepers only on
a voluntary basis, which directly interferes with
the exercise of management's rights under section
7106(b)(1) of the Statute.

The Authority has held that proposals that
directly interfere with the exercise of a management
right do not constitute negotiable procedures under
section 7106(b)(2) of the Statute. See National
Association of Government Employees, Local R12-33
and U.S. Department of the Navy, Pacific Missile
Test Center, Point Mugu, California, 40 FLRA No. 45,
slip op. at 9 (1991); 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). To the extent that the matters proposed
to be bargained here directly interfere with the
exercise of a management right, they do not
constitute negotiable procedures.

Finally, we find that subsections 2 and 3 do not
constitute an appropriate arrangement within the
meaning of section 7106(b)(3) of the Statute.
Although the Union did not clearly articulate an
assertion that these subsections were intended to be
an appropriate arrangement for employees adversely
affected by the exercise of a management right, we
will construe the Union's petition for review to
contain such an assertion for two reasons. First,
in its petition, the Union argues that subsections 2
and 3 are negotiable because of the "adverse impact
of the utilization of the beepers . . . ." Petition
for Review at 1. Second, in its declaration of
nonnegotiability, the Agency took the position that
subsections 2 and 3 are not appropriate arrangements
because they would directly interfere with the
exercise of various management rights and that "the
detriment to management's exercise of its reserved
rights outweighs any benefits the employee would
receive." Petition for Review, Exhibit E.

We find, however, that subsections 2 and 3 do not
constitute appropriate arrangements. To determine
whether a proposal constitutes an appropriate
arrangement under section 7106(b)(3), it is
necessary to determine whether it 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,
31-33 (1986).

Assuming that subsections 2 and 3 were intended
to be an arrangement, by virtue of the Union's
statement that the matters are bargainable because
of the "adverse impact" of the use of beepers, we
nonetheless find that the arrangement is not
appropriate within the meaning of section
7106(b)(3). By making the use of beepers voluntary,
at the sole option of the employee, the subsections
would prevent the Agency from requiring their use,
even when the Agency has determined that the use of
beepers will enable employees to respond quickly to
emergencies and other situations requiring immediate
action. The impact on the Agency's ability to
perform its mission would, thereby, be seriously
impaired. In contrast, the benefits to the
employees of being able to choose not to carry a
beeper and not to call in unless paged, are minimal.
In our view, the balance tips heavily in favor of
the Agency's position. Accordingly, we conclude
that the subsections here in dispute, limiting the
Agency's use of beepers, excessively interfere with
the exercise of management's right to determine the
methods and means of performing work.

In sum, we find that subsections 2 and 3 directly
interfere with management's right to determine the
methods and means of performing work under section
7106(b)(1) of the Statute. Additionally, the
subsections do not constitute a negotiable procedure
under section 7106(b)(2) of the Statute or an
appropriate arrangement under section 7106(b)(3) of
the Statute. In view of our conclusions, it is
unnecessary to address the Agency's additional
contentions as to the negotiability of these
subsections.

V. Order

The petition for review is dismissed.

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

*/
In view of our decision, it is unnecessary to
pass on the Agency's contention that the matters in
dispute also interfere with the Agency's
determination as to the technology of performing
work.