National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Region V, Walnut Creek, California (Authority decision, August 15, 1991)

Final FLRA decision. The Authority finds the office selection proposal within the duty to bargain and orders the agency to bargain on request. An aggrieved person may seek judicial review by petitioning an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

After renovating its Walnut Creek offices, the Nuclear Regulatory Commission wanted employees to choose offices only within their own branch's space. The union proposed seniority based selection across each division's floor, except where a choice clearly conflicted with work assignments; it excluded the second floor from that arrangement. The Authority found that the proposal left the agency free to organize employees by branch and did not alter reporting lines or assigned duties. The agency had not shown that seating branch employees together was directly tied to its mission, especially when many inspectors traveled frequently and the offices were close together. The Authority held the proposal negotiable and ordered bargaining on request, without endorsing the proposal's merits.

Decision snapshot

• Authority: Management organization and work methods under 5 U.S.C. §§ 7106(a)(1) and 7106(b)(1).
• Outcome: Floor based office selection proposal held negotiable; bargaining ordered on request.
• Key point: A seating preference within existing divisional floors did not itself change the agency's organizational structure or work methods.

Full text (FLRA public release)

[ v41 p1195 ]

41:1195(93)NG

The decision of the Authority follows:

41 FLRA No. 93

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

U.S. NUCLEAR REGULATORY COMMISSION

REGION V

WALNUT CREEK, CALIFORNIA

(Agency)

0-NG-1907

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

August 15, 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 under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute). It concerns
the negotiability of a proposal pertaining to the selection of
employees' offices following renovation of the Agency's office
space. For the reasons stated below, we find that the proposal
is negotiable.

II. The Proposal

Bargaining unit employee office space shall be
selected according to seniority as defined by
grade, then service computation date. Selections
as to specific office space will be by floor,
except when such selection clearly conflicts with
the assignment of work. [Only the underscored
portion is in dispute.]

III. Positions of the Parties

A. The Agency

The Agency contends that the portion of the
proposal allowing for selection by floor interferes
with management's rights to determine the organization
of the Agency under section 7106(a)(1) of the Statute,
and the methods and means of performing work under
section 7106(b)(1) of the Statute. The Agency
explains that the proposal would allow bargaining unit
employees to select where they wish to be located on a
particular floor, which essentially would constitute
selection by division. The Agency states that the
Region is comprised of three divisions, each of which
occupies a full floor. The Agency notes that within
the three divisions there are, respectively, 2
branches consisting of 43 employees, 3 branches
consisting of 31 employees, and 2 branches consisting
of 18 employees. The Agency argues that there is a
need to have employees located together within
branches, rather than divisions, and that therefore
employees should be able to select their workstations
only from within the space designated for a particular
branch. The Agency states that having employees
within each of its branches located together
contributes to the accomplishment of the Agency's
mission "to protect the public health and safety."
Agency's Statement of Position at 4.

Specifically, the Agency argues that locating
employees by branch is important to the Region because
it: (1) enhances supervisory communications and
control and communication between technical and
administrative support staff within each branch; (2)
allows for employees to function more effectively; (3)
leads to an efficient and effective "extension of the
functions of the organization []"; (4) enhances
effective management, control, and efficiency, to the
extent that divisions are organized into branches,
because, among other things, branches perform
different functions; (5) facilitates better
information exchange among employees and communication
during emergencies; and (6) enhances office coverage
when technical employees are out of the office on
travel, which averages one week out of three. Id.

With respect to its argument that the proposal
interferes with the right to determine its
organization, the Agency argues that its determination
to locate employees by branch is an exercise of its statutory right to
organize and that there is a "direct and substantive
relationship between a branch's work and the location
of its employees." Id. at 7. In support, the Agency
relies on National Treasury Employees Union, Chapter
83 and Department of the Treasury, Internal Revenue
Service, 35 FLRA 398 (1990) (Treasury, IRS); National
Treasury Employees Union, Atlanta, Georgia and U.S.
Department of the Treasury, Internal Revenue Service,
Jacksonville District, 32 FLRA 886 (1988) (Treasury,
Jacksonville); National Treasury Employees Union,
Chapter 55 and Internal Revenue Service, Columbia
District, Columbia, South Carolina, 15 FLRA 820 (1984)
(IRS, Columbia); American Federation of Government
Employees, AFL-CIO, Local 3805 and Federal Home Loan
Bank Board, Boston District Office, 5 FLRA 693 (1981)
(Bank Board, Boston); and Congressional Research
Employees Association and the Library of Congress, 3
FLRA 736 (1980) (Library).

As to the Agency's argument that the proposal
interferes with its right to determine the methods and
means of performing work, the Agency argues that the
grouping of employees by branch is functional. The
Agency maintains that such functional grouping
facilitates the accomplishment of the branches' work
and, therefore, the Agency's work. The Agency argues
that the proposal would "take away the [A]gency's
ability to determine the functional grouping necessary
to carry out its mission." Agency's Statement of
Position at 8. In support, the Agency relies on
Treasury, IRS, 35 FLRA at 408.

B. The Union

The Union states that the purpose of the
proposal is to continue the present seating
arrangement and to allow employees to select where, on
the particular floor to which their division has been
assigned, they will sit. The Union adds that the
proposal would allow employees with seniority to have
priority in selecting the more desirable offices. The
Union further states that the proposal would apply to
office selection only on two of the three floors
occupied by the divisions (the third and fourth
floors). The Union adds that the proposal would not
apply to office selection on the second floor as the
Union "understood the Agency's need for seating these
employees by branch." Response at 6.

The Union contends that the proposal would not
interfere with management's rights to determine its
organization because the proposal would not alter the
way in which the Agency is organized or affect the
Agency's administrative or functional structure. The
Union states, in this regard, that the Agency would
still be organized by divisions, with each division
divided into branches. The Union states that the
proposal simply concerns a work area or floor within a
building on which employees will work, and that this
does not constitute the designation of an official
duty station.

In response to the Agency's assertion that the
proposal interferes with management's right to
determine the methods and means of performing work,
the Union argues that the Agency has not established
that there exists a direct and integral relationship
between seating employees by branch and the
accomplishment of the Agency's mission. Moreover, the
Union asserts that the Agency has not demonstrated how
the Union's proposal to seat employees by division
would directly interfere with the mission-related
purpose for which seating employees by branch was
adopted.

The Union also argues that the Agency failed to
substantiate its claims concerning the six areas that
would be affected by the proposal. More specifically,
the Union argues that supervisory communications and
control would not be affected by the proposal because
almost all of the employees working on the third and
fourth floors are inspectors who work independently
and travel frequently, and who see their supervisors
only two or three times per week. In terms of
communication between the technical and administrative
support staff, the Union states that branch
secretaries do not answer the phones of technical
employees, relay messages or deliver mail. Rather,
all employees have "Voice Mail Boxes" that allow them
to receive their phone calls directly or via recorded
messages.(1) Mail is delivered to a central mail box
on each floor, with employees responsible for picking
up their own mail. The Union also states that there
is a centralized typing pool, which is located in one
general area and which serves the entire regional
office. The Union notes that at least one branch
secretary works at the opposite end of the floor from
the branch chief. The Union argues that as that
arrangement has not interfered with the method and
means of performing work, neither would an arrangement
that would allow employees to be located physically
apart from their particular branch secretary.

The Union further argues that the proposal would
not affect the management, control and efficiency of
performance because the proposal would not affect or
change the Agency's supervisory structure. In terms
of information exchange among branch employees, the
Union states that as the floor dimensions measure 70
feet by 140 feet, employees would simply have to walk
a few extra seconds to reach another employee's
office. The Union adds that due to travel
requirements, employees are rarely in the office at
the same time. Communication during emergencies would
be unaffected by the proposal because the Agency has
established an Incident Response Center to which
employees report for the necessary communication.

Finally, the Union argues that the proposal
would not affect office coverage when employees are on
travel status inasmuch as there is no coverage for
employees at such times. The Union asserts that the
Agency does not have any mechanism in place to receive
phone messages or mail for employees who are on travel
status but, rather, employees utilize the Voice Mail
Box system to obtain their messages.

IV. Analysis and Conclusions

We conclude that the proposal is negotiable.
Initially, we note that the only issue in dispute
concerns the portion of the proposal allowing for
office selection by floor. The record indicates that
the parties are in agreement as to the use of
seniority, as defined by the proposal, for office
selection. Agency's Statement of Position, Attachment

4. With regard to the disputed portion of the
   proposal, we find that it does not directly interfere
   with management's rights to determine its organization
   under section 7106(a)(1) of the Statute or the methods
   and means of performing work under section 7106(b)(1)
   of the Statute.

A. The Right to Determine the Organization of
the Agency

The right of an agency under section 7106(a)(1)
to determine its organization refers to the
administrative and functional structure of an agency,
including the relationships of personnel through lines
of authority and the distribution of responsibilities
for delegated and assigned duties. See, for example,
Federal Employees Metal Trades Council, AFL-CIO and
Department of the Navy, Mare Island Naval Shipyard,
Vallejo, California, 25 FLRA 465, 473 (1987). This
right encompasses the determination of how an agency
will structure itself to accomplish its mission and
functions. Treasury, IRS, 35 FLRA at 409.

Authority decisions concerning the relationship
between an agency's right to determine its
organization and the designation of official duty
stations are closely tied to the specific
circumstances involved in each case. Treasury, IRS,
35 FLRA at 412. The Authority previously has found
that the terms "official station," "duty station," and
"post of duty" usually refer to something more general
than a work area or floor within a building. See id.
at 409-13; American Federation of Government
Employees, Local 3601 and U.S. Department of Health
and Human Services, Public Health Service, Indian
Hospital, Claremore, Oklahoma, 39 FLRA 504 (1991)
(HHS, Claremore). As we stated in HHS, Claremore,
Authority precedent does not support the broad
conclusion that whenever an agency chooses to call the
specific location in which employees are assigned to
perform their work an "official duty station," the
choice of that location always constitutes an exercise
of the right to determine organization under the
Statute. Id. at 515. Rather, Authority precedent
supports a conclusion that an agency's designation of
"official station," "duty station," or "post of duty"
is encompassed within the right to determine
organization only insofar as that designation has a
direct and substantive relationship to an agency's
administrative and functional structure. Id., citing
Treasury, IRS.

Therefore, to come within the scope of the right
to determine the organization of an agency, the Agency
must establish that the "duty station" of employees,
that is, where they are physically located, has a
direct and substantive relationship to the Agency's
administrative or functional structure. For the
following reasons, we find that the Agency has not
established that its determination to allow employees
to select their workstations only from within the
floor area designated for a given branch meets this
requirement.

We note the Agency's statements that it has
determined to locate its employees by branches and
that there is a "direct and substantive relationship
between a branch's work and the location of its
employees." Agency's Statement of Position at 7.
However, we also note the Union's arguments that the
proposal does not involve an official duty station
but, rather, a work area or floor within a building,
and does not alter the Agency's organization by
divisions, with each division divided into branches.
Response at 2-3.

Unlike the cases cited by the Agency, the
proposal in this case would not prevent the Agency
from reassigning functions from one organizational
unit to another and changing the building in which the
work of those functions would be performed (Treasury,
Jacksonville); prevent the Agency from closing or
consolidating certain duty stations (IRS, Columbia);
require the Agency to maintain duty stations in
certain cities (Bank Board, Boston); or determine how
the Agency will be divided into organizational
entities (Library). The proposal would simply allow
employees on two of the three floors occupied by
divisions to choose their office space by floor,
rather than by branch. Although the Agency states
that locating employees by branch on each floor
contributes to the accomplishment of the Agency's
mission, and the Agency specifies various reasons in
support of its position, those assertions relate more
to the Agency's argument that the proposal interferes
with the methods and means of performing work, which
we will address below. Such arguments do not
establish that the choice of location constitutes an
exercise of the Agency's right to determine its
organization under section 7106(a)(1) of the Statute.
We note, moreover, as to the Agency's statement that
organizing employees by division enhances effective
management, control and efficiency, that the proposal
does not affect the Agency's decision to segment its
operations into divisions and branches. The Union
clearly states that the proposal is not intended to
affect the Agency's determination to maintain that
particular organizational structure and there is
nothing in the proposal to establish otherwise.

Accordingly, we conclude that the Agency has not
established that its determination to allow employees
to select their workstations only from within the
floor area designated for a given branch has a direct
and substantive relationship to the Agency's
administrative and functional structure. Therefore,
we find that the proposal does not directly interfere
with the Agency's right to determine its organization.
See HHS, Claremore, 39 FLRA at 516 (agency did not
establish that its determination not to provide a
private office for a medical staff quality assurance
employee had a direct and substantive relationship to
its administrative and functional structure);
Treasury, IRS, 35 FLRA at 413 (agency did not
establish that the determination of where the Taxpayer
Service Division is located within its office building
had a direct and substantive relationship to its
administrative or functional structure).

B. The Right to Determine the Methods and Means
of Performing Work

The Authority employs a two-part test to
determine whether a proposal interferes with
management's right to determine the methods and means
of performing work. 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. Second,
the agency must show that the proposal would directly
interfere with the mission-related purpose for which
the method or means was adopted. Treasury, IRS at
406.

The Authority has construed "method" as
referring to the way in which an agency performs its
work. Id. "Means" refers to any instrumentality,
including an agent, tool, device, measure, plan or
policy used by an agency for accomplishing or
furthering 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.

The relative importance of a particular "means"
of performing work is irrelevant to a determination of
whether a proposal interferes with the right to
determine the methods and means of performing work.
The means employed need not be indispensable to the
accomplishment of an agency's mission. Rather, 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
(citations omitted). Establishing a "functional
grouping" of employees constitutes the methods and
means of performing work under section 7106(b)(1)
where it is shown that the performance of an agency's
work is facilitated by the ability to group employees
based on the functions which they perform. Id. at
408.

The Agency argues that "nothing could be more
functional than the grouping of the employees by
branch . . . . The key is that the functional
grouping facilitates the accomplishment of the
branch's, and therefore the agency's work. The
union's proposal would take away the agency's ability
to determine the functional grouping necessary to
carry out its mission." Agency's Statement of
Position at 8 (emphasis in original). The Agency
contends that locating employees by branch is
important because it would enhance supervisory and
intra-branch communications and information exchange,
and lead to greater supervisory control,
organizational efficiency and employee effectiveness.

The Union, on the other hand, refutes the
Agency's stated reasons for seating employees by
branch. The Union essentially argues that supervisory
and intra-branch communication would be unaffected by
the proposal inasmuch as employees work independently,
travel frequently and, therefore, see their
supervisors infrequently. The Union adds that
employees pick up their own mail and receive phone
messages with little interaction with the
administrative support staff. The Union also asserts
that effective communications would not be impaired
because the dimensions of the floors on which
employees work measure 70 feet by 140 feet, thus
placing all offices within a short distance of one
another. As to the other reasons advanced by the
Agency in support of its seating arrangement, the
Union states that the management, control and
efficiency of the Agency would not be affected because
the intent of the proposal is not to change the
Agency's current organizational structure.

We find that the Agency has not established that
there is a direct relationship between locating
employees by branch and the accomplishment of the
Agency's mission. Initially, we stress that nothing
in the proposal would prevent the Agency from
organizing employees by branch. The proposal is
concerned basically with seating assignments, by
allowing office selection on a floor, rather than a
branch, basis. In U.S. Department of Health and Human
Services, Social Security Administration, Baltimore,
Maryland, 36 FLRA 655 (1990), the Authority found that
a change in employees' seating assignments gave rise
to a bargaining obligation. In reaching that result,
we noted that the location at which employees perform
their duties, as one aspect of an employee's office
environment, concerns a matter "at the very heart of
the traditional meaning of 'conditions of
employment.'" Id. at 668, quoting Library of Congress
v. FLRA, 699 F.2d 1280, 1286 (D.C. Cir. 1983). The
Authority also has found negotiable proposals relating
basically to seating assignment in other contexts.
See, for example, National Treasury Employees Union
and Department of Health and Human Services, Family
Support Administration, 28 FLRA 1108 (1987) (proposal
allowing for office selection by seniority negotiable
as proposal would be implemented within program
arrangement selected by agency); HHS, Claremore, 39
FLRA at 512-14 (proposal to provide a private office
for a certain employee was found to be negotiable
because agency did not show that there was a direct
relationship between having the employee located with
the rest of the employees in the department and the
accomplishment of the agency's work).

Here, the Agency has not established that the
manner in which employees perform their work
necessitates office selection on a branch basis in
order to accomplish the Agency's mission. In this
connection, the Agency has not described the nature of
the employees' duties or the work of the branches so
as to support a finding that a direct and integral
relationship exists between office selection by branch
and the performance of the Agency's mission "to
protect the public health and safety." Agency's
Statement of Position at 4. Moreover, as noted above,
the proposal would not prevent the Agency from
accomplishing its work by organizing its employees by
either branch or division.

We find unpersuasive the Agency's assertion that
office selection by branch would enhance supervisory
control and communications. In HHS, Claremore, based
on the record before it, the Authority found that
grouping employees together for the convenience of the
supervisor and its effect on supervisory control did
not constitute a functional grouping of employees so
as to constitute a method or means of performing work
under section 7106(b)(1). We reach the same result
here. In this regard, the record reveals that office
selection would be made from the floor on which the
employees' respective branches are located and that,
at most, a supervisor would have to walk a slightly
greater distance to meet with an employee than if that
employee were located in closer proximity to the
supervisor. Similarly, at most, employees would have
only slightly greater distances to walk, on the same
floor, to meet with other branch employees. Further,
we find that as employees are in a travel status
approximately 33 percent of the time, the need for
close proximity in order to maintain supervisory
control and communication is somewhat diminished.
With regard to the Agency's additional contentions, we
conclude that, in the circumstances described by the
parties, minimal changes in the physical location of
employees would not have a sufficient effect on the
Agency's organizational efficiency or employee
effectiveness to affect our decision, especially in
view of the fact that employees are absent from the
office for considerable periods of time.

The Agency's reliance on Treasury, IRS is
misplaced. In Treasury, IRS, the Authority found that
a union proposal to provide 64 square feet of space
for each bargaining unit employee did not prevent the
agency from establishing a functional grouping of
employees. Initially, however, the Authority found
that the agency's plan to establish the functional
grouping of employees constituted a means of
performing work because the agency had established
that the functional grouping facilitated supervision,
communication, instructional capability, coverage for
absent employees and created a team atmosphere. By
contrast, as discussed above, the proposal here would
not have a significant effect on supervision,
communication and coverage. The additional factors
that were present in Treasury, IRS have not been
raised and do not appear to be present here.

This case is also distinguishable from 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, 355 (1987) (noting the absence of
contradictory arguments, the Authority found, with
regard to a proposal for office selection, that the
agency had established "a link . . . between the
location of employees in workspace and furthering the
performance of work."); and American Federation of
State, County and Municipal Employees, AFL-CIO, Local
2910 and Library of Congress, 19 FLRA 1180 (1985)
(proposal concerning preference of seating assignments
shown to directly and integrally relate to the
agency's operations).

In sum, we find that the Agency has failed to
establish that the proposal would interfere with the
methods and means of performing work, as alleged. As
the proposal also would not directly interfere with
the Agency's right to determine its organization, we
find that the proposal is within the duty to bargain.

V. Order

The Agency must upon request, or as otherwise
agreed to by the parties, bargain concerning the
proposal.(2)

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

1. The Union indicated that as of the date on which
   it filed its response to the Agency's statement of
   position, only employees on the fourth floor had
   available the Voice Mail Box system. The Union noted,
   however, that employees on the third floor would have
   the same system available as soon as renovation of the
   third floor was completed.

2. In finding the proposal to be negotiable, we make
   no judgment as to its merits.