American Federation of Government Employees, Local 520 (Union) and United States, Department of Veterans Affairs, Regional Office, Columbia, South Carolina (Agency) (Authority decision, February 15, 2005)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority dismissing a negotiability petition. An aggrieved person may seek judicial review by filing a petition in 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 a court orders a stay under § 7123(c).

Plain-English summary

A VA employee moved to a resource center without the telephone he previously had at his cubicle. His union proposed that he retain a telephone at the new cubicle. The Authority found the proposal outside the duty to bargain because it affected the agency's choice of work technology and the union had shown only speculative adverse effects, so it was not an appropriate arrangement. The agency's late reply was excluded from consideration. Chairman Cabaniss concurred on additional grounds; Member Pope dissented, finding the loss of telephone access at the cubicle a concrete adverse effect and the proposal negotiable.

Decision snapshot

• Authority: 5 U.S.C. §§ 7105(a)(2)(E), 7106(b)(1), and 7106(b)(3).
• Outcome: Union petition dismissed; cubicle telephone proposal held outside the duty to bargain.
• Key point: The majority found no demonstrated adverse effect from using shared telephones in the resource center.

Full text (FLRA public release)

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60 FLRA No. 124

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 520

(Union)

and

UNITED STATES

DEPARTMENT OF VETERANS AFFAIRS, REGIONAL OFFICE

COLUMBIA, SOUTH CAROLINA

(Agency)

0-NG-2762

_____

DECISION AND ORDER

ON A NEGOTIABILITY ISSUE

February 15, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and

Carol Waller Pope and Tony Armendariz, Members [n1]

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The Agency filed a statement of position, following which the Union filed a response and the Agency filed a reply. The appeal involves the negotiability of one proposal requiring the Agency to provide a unit employee with a telephone at his cubicle.

For the following reasons, we find that the proposal is outside the duty to bargain. Accordingly, we dismiss the petition for review.

II. Proposal

Continue to provide a telephone, at each employee's destination cubicle, for all those employees involved in the transfer who currently have a telephone. Provide a telephone at each employee's destination cubicle for those employees reassigned from the Resources Center. (Only the italicized portion of the proposal is in dispute.)

III. Meaning of the Proposal

The Union asserts that the proposal concerns one employee who was transferred from a work team where the Agency provided the employee with a telephone at his cubicle to a work team in the Resource Center where the Agency did not provide the employee with a telephone at his cubicle. See Record of Post-Petition Conference at 2. The Union explains that the proposal is intended to allow the employee to retain telephone usage at his destination cubicle in the Resource Center. See id. The Agency does not dispute the Union's explanation of the proposal.

IV. Preliminary Issue: The Agency's Reply was not timely filed.

Pursuant to § 2424.26(b) of the Authority's Regulations, an agency must file its reply within fifteen days of receiving a union's response to the agency's statement of position. See 5 C.F.R. § 2424.26(b). The Authority's Case Control Office (CCO) determined that the Agency's reply appeared to be untimely and issued a Show Cause Order requiring the Agency to demonstrate why its reply should not be dismissed. See Order to Show Cause at 2. In response, the Agency acknowledged that the Agency representative's copy of the Union's response was received at the Agency's building on July 19, 2004, but asserted that an internal delivery error resulted in the Agency representative not receiving the response in her office until July 23. [n2] See Agency's Response to Order to Show Cause at 2-3. As such, the Agency contended that its reply was not due until August 9. Alternatively, the Agency asserted that the Agency's Assistant General Counsel received the Agency head's copy of the Union's response by mail on July 20. See id. at 4. Using this date as the date of receipt, the Agency claimed that its reply was not due until August 9 because, under § 2429.22 of the Authority's Regulations, the Agency had fifteen days, plus an additional five days, from the date of receiving the Union's response to file its reply.

The applicable time limit for an agency to file its reply with the Authority is measured from the date the agency receives the union's response. See § 2424.26(b). The Agency acknowledged that the Union's response was received at its office on July 19, but asserted that the Union's response was not received by the Agency representative until July 23. However, § 2424.26(b) provides that the Agency's reply is due fifteen days from receipt of the Union's response by the Agency, not [ v60 p616 ] its representative. Further, a delay caused by an agency's internal mail system does not excuse untimely filings. See NFFE, Local 2015, 53 FLRA 967, 970 (1997) (NFFE, Local 2015). Moreover, because the time limit for the Agency to file its reply is based on the date of receipt, not service, the Agency is not entitled to the five days added to a party's response time when a notice or paper is served by mail. See § 2429.22; AFGE, Local 3434, 49 FLRA 382, 384-85 (1994).

The record demonstrates that the Agency timely received the Union's response on July 19. Accordingly, to be timely, the Agency's reply had to be filed by August 3. As the Agency's reply was filed on August 9, we find that the Agency's reply was untimely filed and do not consider it. In addition, we deny the Agency's request that the Authority waive the expired time limit pursuant to § 2429.23 of the Authority's Regulations. See Agency's Response to Order to Show Cause at 5; 5 C.F.R. § 2429.23 (Authority may waive expired time limit in extraordinary circumstances). A delay caused by an internal mail system that results in a party's submission to the Authority being untimely does not constitute an extraordinary circumstance under § 2429.23. See NFFE, Local 2015, 53 FLRA at 970.

V. Positions of the Parties

A. Agency

The Agency asserts that the proposal violates its right to determine the technology, methods, and means of performing work under § 7106(b)(1) of the Statute. See Agency's Statement of Position at 4. The Agency also asserts that the proposal is not an appropriate arrangement under § 7106(b)(3) of the Statute because the proposal does not address an adverse effect. In this regard, the Agency asserts that Resource Center employees do not need a telephone to perform their work, and contends that, on the "occasion" the employee needs a telephone for work-related purposes, there are seven telephones in the Resource Center available for such use. Id. at 6. The Agency asserts that if the Authority finds that the Union has established that the proposal is an arrangement, then the proposal is not appropriate because it excessively interferes with the Agency's § 7106(b)(1) rights. The Agency "reserve[d] the right" to address the excessive interference issue in its reply to the Union's response. Id.

B. Union

The Union does not dispute that the award affects the Agency's § 7106(b)(1) right to determine the technology of performing work. The Union claims that the proposal is nevertheless negotiable as an appropriate arrangement under § 7106(b)(3). See Union's Response at 2. In claiming that the proposal is an arrangement, the Union asserts that the proposal concerns one employee who no longer has a telephone at his cubicle as a result of being transferred to the Resource Center. The Union contends that the proposal is intended to address the adverse effects resulting from the Agency's decision not to provide the employee with a telephone at his cubicle. In identifying the adverse effects, the Union asserts that the Agency's decision restricts the employee's ability to make and receive emergency and non-emergency telephone calls in the privacy of his cubicle, compromises the employee's safety, and prevents the employee from easily seeking assistance from more experienced employees, which decreases his work production and ability to meet the performance standards established for his duties. Id. at 4.

The Union claims that the arrangement is appropriate because it benefits the employee by providing him with the means to make and receive authorized personal and work-related calls. See Union's Response at 3-4. In addition, the Union asserts that the proposal does not burden the Agency because additional telephones and lines are available and the Agency's telephone system is capable of accommodating the additional lines.

VI. The proposal does not constitute an appropriate
arrangement under § 7106(b)(3) of the Statute.

The Union concedes that the proposal affects the Agency's right to determine the technology, methods, and means of performing work under § 7106(b)(1). See Union's Response at 2. Generally, a proposal that concerns a § 7106(b)(1) matter is bargainable at the election of the agency. However, if the proposal constitutes an appropriate arrangement under § 7106(b)(3) of the Statute, the agency has an obligation to bargain over the proposal. The Union argues that the proposal in this case constitutes an appropriate arrangement under § 7106(b)(3).

In determining whether a proposal is an appropriate arrangement, the Authority follows the analysis set forth in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). Under this analysis, the Authority first determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. Id. at 31; see also United States Dep't of the Treasury, Office of the Chief Counsel, Internal Revenue Serv. v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). To establish that a proposal is an arrangement, a union must identify the effects or reasonably foreseeable effects on employees that flow from the exercise of management's [ v60 p617 ] rights and how those effects are adverse. See KANG, 21 FLRA at 31. Proposals that address purely speculative or hypothetical concerns, or that are unrelated to management's exercise of its reserved rights, do not constitute arrangements. See, e.g., NAGE, Local R1-100, 39 FLRA 762, 766 (1991). The claimed arrangement must also be sufficiently "tailored" to compensate those employees suffering adverse effects attributable to the exercise of management's rights. See AFGE, Local 1687, 52 FLRA 521, 523 (1996).

If the Authority determines that the proposal is an arrangement, then the Authority will examine whether the arrangement is appropriate, or whether it excessively interferes with the relevant management right. See KANG, 21 FLRA at 31-32. In doing so, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's right. Id.

The Union contends that the proposal is intended to address the adverse effects resulting from the Agency's decision not to provide the employee with a telephone at his cubicle. In identifying the adverse effects, the Union asserts that the Agency's decision restricts the employee's ability to make and receive telephone calls in the privacy of his cubicle, compromises the employee's safety, and decreases his work production and ability to meet the performance standards established for his duties. See Union's Response at 4.

Upon review of the record, we conclude that the adverse effects the Union seeks to mitigate are speculative. In this regard, the Union has failed to establish that the Agency's decision not to provide the employee with a telephone at his cubicle adversely effects the employee's ability to make and receive personal and work-related telephone calls. In fact, the Union acknowledges that there are several telephones located in the Resource Center available for such use. See Union's Response at 2; Agency's Statement of Position at 5. In addition, although the Union claims that the proposal addresses the employee's safety concerns, the Union has not established that requiring the Agency to provide the employee with a telephone at his cubicle will have any impact on the employee's safety. See NAGE, Local R1-100, 39 FLRA at 766. Further, the Union has not demonstrated that the Agency's exercise of its management right will adversely effect the employee's work production and his ability to meet the performance standards established for his duties. See Prof'l Airways Sys. Specialists, 59 FLRA 25, 29 (2003). Cf. W. Point Elementary Sch. Teachers Ass'n, NEA, 34 FLRA 1008, 1013 (1990) (where agency's exercise of a management right detracts from an employee's ability to satisfactorily accomplish his or her duties, the adverse impact on the employee is reasonably foreseeable).

In our view, this case is distinguishable from a proposal in AFGE, Local 1122, 47 FLRA 272, 284-91 (1993), which involved negotiations over the impact and implementation of the agency's decision to install systems furniture in unit employees' work area. The union proposed that each employee be provided with a certain type of telephone that would permit the employee to handle rollover calls from the secretary. The Authority found that the proposal was an arrangement within the meaning of § 7106(b)(3) of the Statute in that the proposal was designed to address the adverse effects of the agency's decision to provide only one such telephone at the workstation of one employee. Noting, among other things, that all of the employees provided backup to the secretary in the latter's absence, the Authority found that the proposal would give each employee an equal chance of receiving rollover calls, thereby reducing the adverse effect on the performance of the one employee in whose workstation the telephone was placed. The Authority also found that the proposal would provide employees with easier access to make and receive work and non-work related phone calls without having to make such calls in the presence of the employee in whose workstation the one telephone was located. Applying KANG, the Authority essentially found that the adverse effects that the proposal sought to mitigate were not speculative. In contrast, and for the reasons stated above, the Union has not established that the adverse effects on the employee in this case are other than speculative.

As the concerns the proposal is intended to address are speculative, the proposal does not constitute an arrangement within the meaning of § 7106(b)(3). As such, the proposal is not an appropriate arrangement under § 7106(b)(3). [n3]

VII. Order

The petition for review is dismissed. [ v60
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Concurring Opinion of Chairman Cabaniss:

I write separately to address other reasons why I would find this proposal outside of the Agency's duty to bargain. Even if one were to find that the proposed arrangement is not speculative in nature, proposals excessively interfere with an agency's rights under § 7106 when the effect of the proposal is to negate the substantive decision being made by the agency (as opposed to establishing procedures or appropriate arrangements addressing the substantive exercise of that right). See, e.g., IFPTE, Local 1, 49 FLRA 225, 249 (1994) (absolute prohibition on assignment of particular duties to certain employees found to excessively interfere with agency right to assign work); NTEU, Chapter 26, 22 FLRA 314, 325 (1986) (proposal that completely abrogated agency right to assign particular employees to perform particular job excessively interfered with right to assign work).

Here the Agency has the right, under § 7106(b)(1), to determine the technology for performing work. While the Union asserts no right in the present case to negotiate over the substance of this decision per § 7106(b)(1), it still has the right to negotiate appropriate arrangements per § 7106(b)(3). While the precedent noted above address appropriate arrangement proposals in the context of § 7106(a) rights, I see no basis for not applying the excessive interference analysis any differently based on the fact that an agency's § 7106(b)(1) rights are at issue here. As the effect of the proposal would be to negate the Agency's substantive determination as to what technology it will use to perform its work, the proposal excessively interferes with the Agency's rights under § 7106 and is outside the duty to bargain.

I also take this opportunity to raise concerns about the ability to apply without qualification the holdings of Authority negotiability precedent to other negotiability cases examining similar language. What that means is that the negotiability (or lack thereof) of a proposal in one particular case may not necessarily be dispositive of how that same language should be ruled upon in another case. Each case must stand or fall based upon the merits of the evidence and arguments put forward by the parties to that case, especially in the context of appropriate arrangements under § 7106(b)(3) which by their very nature can turn on a balancing of competing considerations. Negotiability determinations are far more fact- and argument-specific than is acknowledged, and care must be taken to ensure that each case is resolved on the evidence and arguments submitted by the parties, which is not necessarily the same evidence and arguments relied on by the Authority to resolve an earlier case involving the same or similar language.

File 1: Authority's Decision in 60
FLRA No.
124 and Opinion of Chairman Cabaniss

File 2: Opinion of Member Pope

Footnote # 1 for
60
FLRA No. 124

• Authority's Decision

The concurring opinion of Chairman Cabaniss and the dissenting opinion of Member Pope are set forth at the end of this decision.

Footnote # 2 for
60
FLRA No. 124

• Authority's Decision

All dates refer to 2004.

Footnote # 3 for
60
FLRA No. 124

• Authority's Decision

As the proposal does not constitute an arrangement, it is unnecessary to address whether the proposal excessively interferes with the exercise of management's right to determine the technology of performing work. In addition, we note the Union's request that the Authority determine whether the Agency was permitted to reserve the right to make substantive arguments regarding excessive interference in its reply. See Union's Response at 5. However, consistent with our decision to not consider the Agency's reply as untimely filed, we find it unnecessary to address the issue raised by the Union.

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Dissenting Opinion of Member Pope:

I agree with the majority's conclusion that the Agency's reply is untimely and decision to deny the Agency's request that the Authority waive the expired time limit. I also agree that it is unnecessary to address whether the Agency properly reserved the right to address the excessive interference argument in its reply. However, I do not agree that the proposal does not constitute an appropriate arrangement within the meaning of § 7106(b)(3). Accordingly, I dissent.

Even assuming that certain of the adverse effects alleged by the Union, such as compromised safety and decreased work production and performance, are speculative, the employee's loss of his ability to make and receive authorized personal and work-related telephone calls at his cubicle is not a speculative adverse effect. In AFGE, Local 1122, 47 FLRA 272 (1993), the Authority held that a proposal requiring an agency to install telephones at employee workstations, in response to an agency decision to maintain fewer telephones in a new office configuration, was an arrangement for adversely affected employees. See AFGE, Local 1122, 47 FLRA at 288-89. In this regard, the Authority determined that an agency's decision to install a telephone at only one employee's cubicle adversely affected other employees who no longer were able to make and receive authorized personal and emergency telephone calls at their cubicles. The Authority determined that the proposal ameliorated the adverse effect by providing each employee with a telephone at his or her cubicle. See id. at 289.

Here, the situation is analogous to AFGE, Local 1122. It is undisputed that the employee is authorized to make and receive emergency and non-emergency personal telephone calls. See Union's Response at 3, Attach. 14. In addition, the parties acknowledge that a telephone is occasionally necessary for the employee to perform his official duties. See Union's Response at 3-4, Attach. 17; Agency's Statement of Position at 6. By providing the employee with a telephone at his cubicle, the proposal allows the employee to retain the same ability to make and receive authorized personal and work-related telephone calls as when the employee had a telephone at his cubicle. As such, the proposal ameliorates the adverse effects resulting from the Agency's exercise of its right to determine the technology of performing work. Moreover, the proposal requires the Agency to provide a telephone only to the one employee who had a telephone at his cubicle prior to being transferred to the Resource Center. Accordingly, contrary to the majority's conclusion, I would find that the proposal constitutes a sufficiently tailored arrangement.

In determining whether the arrangement is appropriate, the Authority weighs the benefits afforded to the employee under the arrangement against the burdens on the exercise of management's rights. See KANG, 21 FLRA at 31-32. As explained by the Union, the proposal benefits the employee by providing him with a telephone at his cubicle to make and receive necessary work-related telephone calls and authorized personal calls. See Union's Response at 3-4. In addition, according to the Union, the proposal does not burden the Agency because the Agency retains the discretion to determine whether the telephone will be used for work-related calls, the Agency has additional telephones and lines available for use, and the cost associated with providing the employee with a telephone at his cubicle is small. Further, the proposal requires the Agency to provide only one employee with a telephone at his cubicle.

On the other side of the balance, the Agency has failed to demonstrate that the arrangement burdens the Agency in any manner. In this regard, the Agency "reserve[d] its right" to address the excessive interference issue in its reply to the Union's response, Agency's Statement of Position at 6, but it failed to timely file its reply. As such, the Agency has provided no dispute to the Union's factual claims and has failed to provide any explanation of how the proposal excessively interferes with the Agency's right to determine the technology of performing work.

In these circumstances, I would find that the benefits afforded to the employee outweigh any burdens on the Agency's exercise of its right to determine the technology of performing its work. See AFGE, Local 1122, 47 FLRA at 283, 289-91. Accordingly, I would find that the proposal does not excessively interfere with the Agency's right to determine the technology of performing work and is negotiable as an appropriate arrangement under § 7106(b)(3). [*]

File 1: Authority's Decision in 60 FLRA No. 124

File 2: Opinion of Member Pope

Footnote * for
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FLRA No. 124

• Opinion of Member Pope

I note that the concurrence would find that the proposal excessively interferes with the Agency's § 7106(b)(1) right because it "negate[s] the Agency's substantive determination as to what technology it will use to perform its work[.]" Concurring Opinion at

9. The concurrence neither explains this standard nor attempts to reconcile it with § 7106(b)(3), which is an exception to management's
   rights and includes proposals that negate -- at least in part -- exercises of those rights. See NTEU, 60 FLRA 367, 388 (2004) (Concurring Opinion of Member Pope).