BARGAINING OVER THE “TECHNOLOGY” OF PERFORMING WORK
Yes, we hear that a lot of agencies out there are dragging their feet about engaging in permissive bargaining. Unions will just have to keep pushing the issue through the grievance procedure alleging violations of President Biden’s Executive Order and the statute. Be sure to request that the arbitrator order that any agreement reached be given retroactive effect and attorney fees if there is any potential for back pay. In the meantime, we area turning to another one of the permissive subjects of bargaining, i.e., technology.
FLRA has defined the “technology…of performing work” to mean “the technical method that will be used in accomplishing or furthering the performance of the Agency’s work.” AFSCME, Local 2477 and LoC, 7 FLRA 578 (1982). It further refined the concept years later starting that a union’s proposal involves a permissive matter when it seeks to bring new technology into the workplace rather than merely obtaining the right to use or change the way employees use current technology. AFGE, Local 1122 and DHHS, SSA, CA, 47 FLRA 272 (1993). Among the union proposals that FLRA has found to involve the permissive topic of technology are the following:
- Providing certain equipment for the deaf employees. AFGE, Local 1858, 10 FLRA 440 (1982) Presumably this opens the door to bargaining over new equipment for any group of employees.
- Providing specific safety masks for employees. AFGE, Council 214, 22 FLRA 502 (1986)
- Providing two-way radio equipment for employees. FOP, Lodge, 1F, 32 FLRA 944 (1988)
- Providing certain kinds of telephone and computer equipment to employees. AFGE, Local 2544, 46 FLRA 930 (1992)
- Provide secure storage facilities for agency and employee equipment. AFGE Local 1917, 4 FLRA 150 (1980)
- Providing certain office furniture, fixtures, and layout features that promote fulfillment of the mission, including enhancing safety of employees. DHHS, SSA, MD, 44 FLRA 1280 (1992) and Local 644, AFGE, 21 FLRA 658 (1986)
One can’t help but notice when reading cases about the technology of performing work that the arguments raised by the agency and/or union often are inseparably bound up with arguments about the method and means of doing work. Consequently, if parties find themselves in litigation of a technology claim they should also examine the method and means overlap of the issue.