21:0841(102)NG - NTEU, Chapter 153 and Dept. of the Treasury, U.S. Customs Service, Region II -- 1986 FLRAdec NG



[ v21 p841 ]
21:0841(102)NG
The decision of the Authority follows:


 21 FLRA No. 102
 
 NATIONAL TREASURY EMPLOYEES 
 UNION, CHAPTER 153
 Union
 
 and
 
 DEPARTMENT OF THE TREASURY, 
 U.S. CUSTOMS SERVICE, 
 REGION II
 Agency
 
                                            Case No. 0-NG-620
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This petition for review comes before the Authority pursuant to
 section 7105(a)(2)(E) of the Federal Service Labor-Management Relations
 Statute (the Statute) and presents issues concerning the negotiability
 of three Union proposals.
 
    The Union offered these proposals in impact bargaining concerning the
 Agency's decision to establish a telephone "hotline." The purpose of the
 hotline was to serve as "a vehicle for the public to report
 (anonymously, if they so desired) criminal conduct, primarily the
 acceptance of bribes by certain employees." In addition, the Agency
 planned to send a short press release, providing the telephone number of
 the hotline, to newspapers that printed stories about criminal conduct
 by Customs Service employees.
 
                              II.  Proposals
 
                             Union Proposal 1
 
          (4) Information received via the hotline, involving
       non-criminal matters, shall not be investigated or incorporated in
       any record or system of records within the control of the U.S.
       Customs Service.
 
                             Union Proposal 2
 
          (5) A press release for the hotline will include the following
       statement:  "Information received via this press release involving
       non-criminal matters shall not be investigated or incorporated in
       any record or system of records within the control of the U.S.
       Customs Service."
 
                             Union Proposal 3
 
          (6) The Union shall receive a summarization of each of the
       allegations obtained through the Customs hotline involving
       non-criminal matters.
 
                       III.  Position of the Parties
 
                        A.  Union Proposals 1 and 2
 
    The Agency argues that Union Proposals 1 and 2 will limit
 management's use of information from the hotline to the investigation of
 allegations of criminal activity.  Thus, these proposals, according to
 the Agency, will violate its right under section 7106(a)(1) of the
 Statue to determine its internal security practices.  Furthermore, the
 Agency contends, the proposals are contrary to management's right to
 discipline under section 7106(a)(2)(A) as they will preclude
 investigations into allegations of non-criminal activity to determine
 whether employees should be disciplined or removed.
 
    The Union contends that its proposals will not prevent the
 achievement of the Agency's stated objective of gathering information
 involving criminal activities by Customs Service employees.  In
 addition, the Union asserts that information received from the hotline
 concerning non-criminal matters will have an adverse affect on
 bargaining unit employees and that its proposals constitute "appropriate
 arguments" within the meaning of section 7106(b)(3) of the Statute.
 
                           B.  Union Proposal 3
 
    Regarding Union Proposal 3, which is discussed separately here as the
 parties treated it as a distinct issue, the Agency makes three
 arguments.  First, the Agency contends that it is under no duty to
 bargain on the proposal because the dissemination of information
 concerning complaints about or allegations against employees was
 negotiated with NTEU and is covered by Article 3, Section 13 of the
 National Agreement.  Second, the Agency asserts that the compilation and
 disposition of the information the Union seeks is an integral part of
 its internal security process and conflicts with the broad mandate
 granted to agencies in section 7106(a)(1) of the Statute to determine
 their internal security practices.  Third, the Agency argues that Union
 Proposal 3 may violate the Privacy Act.
 
    In response to the Agency's contentions, the Union urges that
 proposal 3 is limited to the Union's receipt of a summary of allegations
 obtained through the hotline whereas the language in the National
 Agreement requires management to notify employees of written complaints
 it receives about employees.  Also, the Union contends that the hotline
 is unique and was not anticipated or discussed at the national
 negotiations.  With regard to internal security, the Union asserts that
 its proposal will not interfere with Agency practices as its purpose is
 simply to ensure that the only allegations investigated are those of a
 criminal nature.  Finally, the Union states that since the Agency will
 prepare the summary, it will control what is disclosed.  In response to
 the allegations that Union Proposal 3 may violate the Privacy Act, the
 Union specifically notes that the proposal does not require the Customs
 Service to divulge the names of employees who are the subject of
 complaints.
 
                               IV.  Analysis
 
                        A.  Union Proposals 1 and 2
 
    The Authority has held that where an agency alleges a union's
 proposal of an appropriate arrangement is nonnegotiable because it
 conflicts with management rights described in section 7106(a) or (b)(1),
 the Authority will consider whether such an arrangement is appropriate
 for negotiation within the meaning of section 7106(b)(3) or, whether it
 is inappropriate because it excessively interferes with the exercise of
 management's rights. National Association of Government Employees, Local
 14-87 and Kansas Army National Guard, 21 FLRA NO. 4 (1986).
 
    As relevant in this case, the Authority has previously held that an
 agency's right to determine its internal security practices under
 7106(a)(1) of the Statute includes policies and actions which are part
 of the agency's plan to secure or safeguard its physical property
 against internal or external risks, to prevent improper or unauthorized
 disclosure of information or to prevent the disruption of the agency's
 activities or operations.  See American Federation of Government
 Employees, AFL-CIO, Local 32 and Office of Personnel Management,
 Washington, D.C., 14 FLRA 6 (1984) (Union Proposal 2), reversed as to
 other matters sub nom. FLRA v. OPM, 778 F.2d 844 (D.C. Cir. 1985).
 
    The record in this case indicates that the Agency has a particular
 need to maintain an honest and reliable workforce.  That is, the Customs
 Service is responsible for the enforcement of customs laws and other
 related laws against the smuggling of contraband;  for the assessment,
 collection and protection of revenue by levying import duties and taxes;
  and for the control of carriers, persons and articles entering or
 departing the United States.  The actual establishment of the hotline
 for the purpose of reporting criminal conduct is not challenged by the
 Union.  The Authority finds such a hotline constitutes a part of the
 Agency's internal security plan to maintain the integrity of its
 operations.
 
    Union Proposals 1 and 2, however, would substantially limit the
 usefulness of this hotline, by restricting management to the
 investigation of only criminal allegations from the hotline.  To
 illustrate, pursuit of non-criminal allegations which might lead to
 revelations of criminal activities by employees is precluded.  Moreover,
 the hotline may not be used as an investigative tool to gather
 information on employee misconduct that does not involve allegations of
 criminal activity.  Union Proposals 1 and 2 would prevent management
 from employing every possible means, including the utilization of
 investigations of non-criminal conduct, to guard against any dishonest
 or prohibited conduct, whether criminal or not among its employees.
 Such a limitation is inconsistent with management's right to determine
 its internal security practices under section 7106(a)(1) of the Statute.
  See National Treasury Employees Union, Chapter 21 and Department of the
 Treasury, Bureau of Engraving and Printing, 18 FLRA NO. 54 (1985) (the
 Authority found a proposal nonnegotiable which required that searches be
 conducted only if authorized by warrant and/or incident to arrest
 because it would defeat the agency's security plan).
 
    In addition, although the hotline was ostensible established to
 enable the Agency to receive information about criminal activity, it is
 clear that if non-criminal information received on the hotline is
 investigated, employees may be subject to disciplinary and removal
 actions.  Under the Union's proposals, however, management is
 specifically prevented from utilizing information acquired through the
 hotline to initiate investigations into non-criminal matters.
 Therefore, in these circumstances the Agency is effectively prevented
 from taking action to discipline or remove employees for improper
 conduct.  See National Federation of Federal Employees, Local 15 and
 U.S. Army Armament Munitions and Chemical Command, Rock Island Arsenal,
 Illinois, 19 FLRA NO. 6 (1985) (Union Proposal 2) (where a proposal
 which provided criteria for management's use in determining whether to
 authorize employee absences was found nonnegotiable as it would prevent
 the agency from taking disciplinary action against employees on the
 basis of those absences).  Moreover, the proposals' restrictions on the
 use of discipline also have the effect of preventing management from
 using discipline as one method to maintain an honest and reliable
 workforce, that is, to determine its internal security practices under
 section 7106(a)(1).  Union Proposals 1 and 2 are therefore inconsistent
 with management's rights to determine its internal security practices
 under section 7106(a)(1) and to take disciplinary actions against
 employees under section 7106(a)(2)(A).
 
    We turn now to the question of whether the Union's proposals
 constitute approporate arrangements within the meaning of section
 7106(b)(3) of the Statute.  Although the Union does not specifically
 address the adverse impact from management's exercise of its reserved
 rights under section 7106(a), it is obvious that employees would be
 subject to disciplinary and adverse actions based on non-criminal
 information derived from the hotline.  The Union's proposed amelioration
 of this adverse effect would be to totally shield employees from
 investigation of non-criminal information received through the hotline
 and any resulting disciplinary action based on such information.
 
    While employees may arguably benefit from a prohibition on
 investigation of non-criminal matters, on balance, it is outweighed by
 the negative impact on management's ability to enhance the integrity of
 Agency operations by investigating improper conduct, criminal or
 non-criminal, and taking appropriate disciplinary action.  It is clearly
 not in the interest of efficient and effective Government operations to
 preclude management from utilizing all the information available through
 the hotline.
 
    Finally, this analysis is not changed by the Union's suggestion,
 contained in its Reply Brief, that the Agency could designate a separate
 hotline or another Agency telephone line to receive reports of
 non-criminal conduct.  In the first place, a separate hotline is not a
 part of the proposals at issue which expressly preclude investigation or
 the taking of appropriate disciplinary action based on allegations of
 non-criminal conduct received via the hotline.  But, even assuming that
 this suggestion is an attempt to ameliorate the adverse effects of
 management's exercise of its rights under 7106(a), it would require that
 the Agency inform a caller who was reporting employee conduct via the
 "criminal" hotline that it was necessary to call on another line.  The
 resulting inconvenience to the caller creates the risk that the caller
 will abandon the attempt to provide the Agency information about
 employee conduct.  Thus, whether the Union's proposals to limit the
 investigation to reports of criminal matters or the alternative hotlines
 are considered, the interference with management's rights to determine
 its internal security practices and take disciplinary and adverse
 actions is excessive.
 
                           B.  Union Proposal 3
 
                         1.  Obligation to Bargain
 
    Contrary to the Agency's claim, there does not appear to be a
 conflict between Article 3, Section 13 of the National Agreement and
 Union Proposal 3.  That is, a review of the language of Article 3,
 Section 13 of the National Agreement reveals that the provision requires
 that an employee be notified as soon as practicable of a written
 complaint received by management.  This provision is clearly different
 from Union Proposal 3 which would only require that the Union receive a
 summary of allegations that management obtains through the hotline
 without identification of the employees concerned.  Compare American
 Federation of Government Employees, Council 147 and Social Security
 Administration, 17 FLRA 908 (1985) where the Authority determined that
 the language of a national agreement precluded negotiation of local
 proposals.
 
    To the extent there are factual issues in dispute between the parties
 as to the intended application of Article 3, Section 13 in the
 circumstances of this case, such issues should be resolved in other
 appropriate proceedings.  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 (1984).
 
         2.  ManagementS Right to Determine Its Internal Security
 
                Practices
 
    Under Union Proposal 3 the Agency retains the discretion to determine
 the timing of the release and the nature of the information that will be
 disclosed as well as the right to take any action necessary to protect
 confidential information or sources.  Because the Agency has not
 established that Union Proposal 3 interferes with its right to conduct
 its investigative functions, which is part of its internal security
 practices, the proposal is within the duty to bargain.  Compare National
 Treasury Employees Union and the Department of the Treasury, U.S.
 Customs Service, 9 FLRA 983, 987 (1982) (provision requiring employees
 to be notified as soon as practicable of written non-criminal complaints
 concerning that employee found within the duty to bargain) with National
 Federation of Federal Employees, Local 1300 and General Services
 Administration, 18 FLRA NO. 97 (1985), petition for review filed, No.
 85-1541 (D.C. Cir. Aug. 27, 1985) (proposal prescribing conditions for
 regular progress reports on on-going investigations concerning employees