[ v24 p842 ]
24:0842(81)NG
The decision of the Authority follows:
24 FLRA No. 81
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, NATIONAL COUNCIL
OF SOCIAL SECURITY FIELD OFFICE LOCALS
Union
and
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
Agency
Case No. 0-NG-1076
DECISION AND ORDER ON NEGOTIABILITY ISSUES
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 thirteen Union proposals. /1/
II. Proposal 1 -- Part D.l.
Every employee working on a VDT (VDT Display Terminal) shall be
required to take a rest break away from his or her machine; such
breaks to be for 15 minutes, in addition to regularly scheduled
breaks, and shall occur after every hour of work on the terminal.
A. Positions of the Parties
The Agency contends that the proposal violates its right under
section 7106(a) to assign work and to determine when the work will be
performed.
The Union contends that the proposal does not concern the assignment
of work. It also contends that the proposal is "essentially an
arrangement by which the Employer's decision to institute new technology
would be applied."
B. Conclusion and Analysis
Proposal 1 is within the duty to bargain. We find that for the
reasons which follow the proposal is not inconsistent with applicable
laws and Government-wide regulations governing rest periods or with
management's rights under the Statute.
The Agency relies on the Authority's decision in National Federation
of Federal Employees, Local 1263 and Defense Language Institute, Foreign
Language Center, Presidio of Monterey, California, 7 FLRA 723 (1982) to
support its claim that the proposal is not negotiable. Such reliance is
misplaced. In that case the proposals held nonnegotiable allocated
specific amounts of time to accomplish particular duties. In contract,
the proposal in this case does not speak to whether work will be
performed, what work will be performed, or when it will be performed --
this proposal is only concerned with securing periodic rest breaks for
employees who management assigns to work at video display terminals.
In American Federation of Government Employees, AFL-CIO, Local 3511
and Veterans Administration Hospital, San Antonio, Texas, 12 FLRA 76,
84-88 (1983), the Authority held a proposal requiring that certain
employees "will be given two uninterrupted rest periods during each
eight hour tour of duty" to be within the duty to bargain. It found
that (1) granting rest periods is a matter within an agency's
discretion; (2) employees remain in a duty status during their rest
periods; and (3) management therefore retains the right to assign work
to them during their rest periods under section 7106(a)(2)(B).
Similarly, in American Federation of Government Employees, Local 3342,
AFL-CIO and Department of Health and Human Services, Social Security
Administration, 19 FLRA No. 124 (1985), the Authority held that
scheduling breaks to which employees are entitled based upon the
parties' agreement is likewise within the duty to bargain.
In the present case, the Agency did not indicate that it would be
unable to assign VDT work during the rest periods or that non-VDT work
did not exist. Therefore, if workload requires, the Agency can assign
VDT work during the rest periods or assign non-VDT work -- for example,
filing -- during the rest periods. Compar American Federation of State,
County and Municipal Employees, Local 2477, AFL-CIO and Library of
Congress, 23 FLRA No. 27, slip op. at 4-5 (1986) (proposal would
preclude agency from assigning work during clothes changing period.)
Thus, the proposal in this case bears no material difference from
those previously held negotiable in the cited cases. Accordingly, in
light of that precedent, we find Proposal 1 to be within the duty to
bargain.
III. Proposals 2 through 12
Proposal 2 -- Part E.1.
Adjustable chair, foot rests and tables to allow for adjustment
of individual machines to suit each operator shall be available to
provide optimum comfort for heights, back and tension and the
minimum amount of physical stress for each operator. Chairs with
full length and half length arm rests as well as chairs without
arm rests shall be provided.
Proposal 3 -- Part E.2.
The above furniture will be adjustable to the extent that each
employee will be able to achieve a .2m knee clearance between seat
and table, maximum viewing distance from screen of .7m, screen at
approximately right angles to line of sight, keyboard at
approximately .7m above ground and can change arm rest style.
Proposal 4 -- Part E.3.
Dimmer switches will be installed so the VDT operator can
adjust the illumination from 1600 lux to 300 lux as needed.
Proposal 5 -- Part E.5.
Workstations should be adjustable so that while typing the
angle of the forearms is 90 to 100 degrees.
Proposal 6 -- Part E.6.
VDT workstations should be adjustable to accommodate the 5th
and 95th percentiles.
Proposal 7 -- Part E.8.
All working surfaces and the paneling around the workstation
should be low reflecting.
Proposal 8 -- Part E.9.
Each VDT shall be provided with radiation protection shields.
Equipment that is already in place must be inspected and fitted
with such shields.
Proposal 9 -- Part E.12.
Ionizing radiation levels of the VDT'S shall not exceed .5
millirems per hour when measured at 2" from the screen.
Proposal 10 -- Part E.13.
Each VDT shall have an effective glar shield.
Proposal 11 -- Part E.16.
Terminals shall not be arranged so as to direct the primary
heat exhausts, without intervening ducts walls or insulation,
within four (4) feet of the place where any person is stationed
for periods of time.
Proposal 12 -- Part E.18.
The noise of printers used in the offices will not exceed 60
decibels at any point in the office.
A. Positions of the Parties
The Agency contends the proposals involve the technology of
performing work under section 7106(b)(1) and are therefore negotiable
only at its election. The Agency also contends that it must first
determine that a health hazard exists before such special equipment can
be purchased citing Department of the Army, Ohio River Division, Corps
of Engineers -- National Federation of Federal Employees, Local No. 892,
63 Comp. Gen. 278 (1984). In this regard, it is apparently claiming
that its discretion to purchase the equipment covered by the proposals
may be limited by standards promulgated in the cited Comptroller General
(CG) decision.
The Union contends that the proposals do not interfere with the VDT
technology the Agency has chosen for the new claims modernization
process. It also contends the proposals provide an "appropriate
arrangement for employees affected by the VDT'S."
B. Conclusion and Analysis
Proposals 2 through 12 are within the duty to bargain.
As discussed below, the proposals are incidental to and not
determinative of the VDT technology adopted by the Agency for the
performance of its work. They are principally related to matters
affecting the working conditions of employees using the VDT'S but do not
interfere with the use of that technology or the purpose for which it
was adopted. The proposals therefore would not interfere with the
Agency's right to determine the technology of performing its work within
the meaning of section 7106(b)(1).
1. The proposals do not directly interfere with
management's right to determine the technology used to
perform its work within the meaning of section
7106(b)(1).
To sustain a claim that a proposal concerning conditions of
employment is negotiable only at the election of management because it
directly interferes with management's right to determine the technology
used in performing its work, an agency must establish:
(1) the technological relationship of the proposal to
accomplishing or furthering the performance of the agency's work;
and
(2) how the proposal would interfere with the purpose for which
the technology was adopted.
In the absence of such showings, the proposal is considered
incidental to the performance of the agency's work and principally
related to matters affecting the working conditions of employees. It
is, if consistent with applicable laws and regulations, within the duty
to bargain. American Federation of State, County and Municipal
Employees, AFL-CIO, Local 2477 and Library of Congress, Washington,
D.C., 7 FLRA 578, 584 (1982), enforced as to other matters sub nom.
Library of Congress v. Federal Labor Relations Authority, 699 F.2d 1280
(D.C. Cir. 1983).
The Authority has previously found that similar equipment related to
matters affecting the working conditions of employees. See Social
Security Administration, Office of Hearings and Appeals, Region II, New
York, New York, and American Federation of Government Employees,
AFL-CIO, Local 1760, 19 FLRA No. 47 (1985) (Proposal 16-concerning
arrangements for isolating word processing equipment that makes
excessive noise.)
To support its claim that the proposals are nonnegotiable, the Agency
relies on the Authority's decisions in: 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). National Federation of Federal Employees, Council of
Consolidated Social Security Administration Locals and Social Security
Administration, 13 FLRA 422 (1983); and American Federation of State,
County and Municipal Employees, AFL-CIO, Local 2477 and Library of
Congress, Washington, D.C., 7 FLRA 578 (1982). The Agency implies that
these cases establish that a proposal requiring an agency to provide
employees with any specified equipment is determinative of the
"technology of performing work" within the meaning of section
7106(b)(1). Such a generalization misstates the Authority's holdings in
the cited cases.
In Mine Health and Safety Administration and in Social Security
Administration, the proposals which the Authority found interfered with
management's right to determine the technology of performing work each
expressly required the agency to provide equipment which was part of the
technical method of performing the agency's work -- telephones in the
former and calculators with memory and percentage functions in the
latter. In Library of Congress the Authority found a part of Proposal 9
concerning the agency's choices of equipment or facilities to be drafted
so broadly as to require negotiations over all equipment and facilities,
including those involving the technical method used by the agency for
performing its work. The Authority specifically stated in that
decision, however, that a proposal focusing on particular equipment
which did not constitute part of the technical method used by an agency
for accomplishing its work would be within the duty to bargain.
In the present case, the Agency has not established that a
technological relationship exists between the proposed equipment
standards and arrangements and performing the Agency's work. Second, it
has not established in any event that such standards and arrangements if
agreed upon would interfere in any way with the purpose for which the
Agency has adopted VDT technology to perform its work. Accordingly, it
follows under Library of Congress that the Agency has not established
that the proposals directly interfere with its right to determine the
technology of performing its work.
2. Comptroller General decisions cited by the Agency do
not render the proposals nonnegotiable.
The Agency claims but has not established, nor is it otherwise
apparent, that under Comptroller General decisions the Agency is without
discretion to comply with the proposals, if agreed upon. An agency
bears the burden of creating a factual record sufficient for the
Authority to resolve the negotiability dispute. National Federation of
Federal Employees, Local 1167 v. Federal Labor Relations Authority, 681
F. 2d 886, 891 (D.C. Cir. 1982), aff'g 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 (1984).
Under the Comptroller General decision cited by the Agency, it is
clear that personal or special equipment may be purchased if the
criteria established by the Comptroller General are met. Ohio River
Division, 63 Comp. Gen. at 280-81. That is, the Agency has some, if not
total discretion in such matters. The lack of total discretion to
implement a proposal is not a basis for finding an otherwise negotiable
proposal outside the duty to bargain. Lacking total discretion, the
Agency's duty to bargain extends to such matters as are within its
discretion. /2/ American Federation of Government Employees, AFL-CIO,
Local 32 and Office of Personnel Management, Washington, D.C., 8 FLRA
409, 411 (1982). Moreover, the Comptroller General has set forth
criteria for determining circumstances in which an agency could purchase
personal equipment in the absence of specific statutory authority. See
Secretary of War, 3 Comp. Gen. 433 (1924). For application of the
criteria see also Secretary of the Interior, 45 Comp. Gen. 215 (1965)
and Ohio River Division, 63 Comp. Gen. at 281.
IV. Proposal 13 -- Part E.19.
The indoor temperature in the office shall not fall below 65
degrees and in hot weather, adequate ventilation and air
conditioning will be provided.
A. Positions of the Parties
The Agency contends that the proposal conflicts with the parties'
National Agreement, Article 9 -- Section 8 (Temperature Conditions). It
contends that the National Agreement's procedures should be used to
resolve issues about the work site's temperature.
The Union contends that the National Agreement provision does not
waive its right to negotiate appropriate arrangements and procedures for
a mid-term change in technology.
B. Conclusion and Analysis
The proposal is within the duty to bargain.
In Internal Revenue Service, Chicago, Illinois and National Treasury
Employees Union (NTEU) and NTEU, Chapter 95, 9 FLRA 648, 651 (1982), the
Authority found that the correction of heating and air conditioning
problems in office areas affected the working conditions of employees
and is within the duty to bargain under the Statute. In the present
case, the only argument raised by the Agency is that negotiations on the
proposal are barred by a master agreement. The record in this case
fails to provide any basis for substantiating the Agency's assertions.
Further, to the extent that there are factual issues in dispute between
the parties concerning the duty to bargain in the specific circumstances
of this case, these issues may be resolved in other appropriate
proceedings. See American Federation of Government Employees, AFL-CIO,
Local 2736 and Department of the Air Force, Headquarters, 379th Combat
Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302,
306 n.6 1984). In addition, the proposal is not inconsistent with
Government-wide regulations concerning the temperature in general office
space. See 41 CFR section 101-20.116-3 (1986).
V. Order
The Agency must bargain upon request, or as otherwise agreed to by
the parties, concerning Proposal 1 through 13. /3/
Issued, Washington, D.C. December 24, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) We will not further consider in this decision three additional
proposals contained in the petition for review. The Union withdrew
proposals on Part 3.7. and Part E.17. and the Agency withdrew its
allegation of nonnegotiability on Part E.10.
(2) Chairman Calhoun agrees with this analysis in this case. He
believes, however, that there is an affirmative obligation to examine
not only whether and to what extent an agency has discretion in a
matter, but also to weigh the interests of the parties and all related
policy considerations. Members Frazier and McKee adhere to the view
expressed in the majority opinion in American Federation of Government
Employees, AFL-CIO, Local 1897 and Department of the Air Force, Eglin
Air Force Base, Florida, 24 FLRA No. 42 (1986) (Chairman Calhoun
Dissenting), that: "It is well settled that matters which are
conditions of employment of employees in a bargaining unit and are
within the discretion of the agency involved are within the duty to
bargain."
(3) In finding these proposals to be within the duty to bargain, the
Authority makes no judgment as to their merits.