21:0841(102)NG - NTEU, Chapter 153 and Dept. of the Treasury, U.S. Customs Service, Region II -- 1986 FLRAdec NG
[ v21 p841 ]
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 held nonnegotiable). 3. Inconsistent With the Privacy Act Although the Agency contends that Union Proposal 3 may violate the Privacy Act, it has failed to point out any part of the proposal which is inconsistent with that statute. It is noted that the plain language of the proposal requires "a summarization of each of the allegations" obtained through the hotline rather than disclosure of the identity of employees involved. Also, as the Union states, the Agency will prepare the summaries and is therefore able to control the content. In these circumstances, the Authority is unable to conclude that there is a violation of the Privacy Act. V. Conclusion Based on the foregoing analysis, the Authority finds that Union Proposals 1 and 2, which would limit the Agency to the investigation of criminal allegations received on the telephone hotline, would excessively interfere with management's right under section 7106(a)(1) to determine its internal security practices and with its right under Section 7106(a)(2)(B) to discipline and remove employees. Regarding Union Proposal 3, the Authority finds that the Agency has failed to substantiate its contentions that it has no duty to bargain on the proposal, that the proposal violates the Privacy Act or that it interferes with the Agency's right to determine its internal security practices. Thus, the Authority finds that Union Proposal 3, which would require that the Agency furnish the Union with a summary of non-criminal allegations received over the hotline, is within the duty to bargain. /*/ VI. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review, insofar as it relates to Union Proposals 1 and 2, be, and it hereby is, dismissed. IT IS FURTHER ORDERED, that the Agency shall upon request, or as otherwise agreed to by the parties, bargain concerning Union Proposal 3. Issued, Washington, D.C., May 15, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) In finding this proposal within the duty to bargain the Authority makes no judgment as to its merits.