24:0249(30)NG - NTEU and IRS, Denver District -- 1986 FLRAdec NG
[ v24 p249 ]
The decision of the Authority follows:
24 FLRA No. 30 NATIONAL TREASURY EMPLOYEES UNION Union and INTERNAL REVENUE SERVICE, DENVER DISTRICT Agency Case No. 0-NG-1192 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 two Union proposals. /1/ For the reasons which follow, we find that both proposals are within the duty to bargain. II. Background The proposals at issue in this case arose when the parties were renegotiating their local Automated Collection Site (ACS) Agreement. The ACS utilizes a Zilog computer system which stores information on delinquent taxpayer accounts and the results of investigations of taxpayers. The employees involved in this case work at a "call site" which attempts to contact delinquent taxpayers and to investigate their assets. The Agency indicates that all employees use the computer system both to retrieve information about taxpayers and to document actions taken on cases. Agency Statement of Position at 2. III. Union Proposal 1 Section 2. The Employer will provide a password for use of Zilog for official union business. A. Positions of the Parties The Agency claims that Union Proposal 1 is in violation of the national ACS agreement and not within the duty to bargain under the reopener clause because there is no provision in the national agreement delegating authority to parties on the local level to negotiate over the issue of union use of the computer system. The Agency further argues that providing the Union with access to the computer system would interfere with its right to determine its internal security pursuant to section 7106(a)(1) of the Statute because it would require giving the Union access to confidential taxpayer information as well as word-processing functions of the system. Finally, the Agency argues that the proposal conflicts with a Government-wide regulation, 5 CFR Section 735.205, which prohibits use of Government property "for other than officially approved activities," insofar as the proposal is meant to allow use of computer terminals for internal union business. The Union asserts that the proposal concerns an issue which is a proper subject for bargaining in the local ACS agreement because it is local in effect and the national ACS permits such issues to be resolved at the local level. The Union further argues that the proposal does not conflict with the Agency's right to determine its internal security because the Union employees who would gain access to confidential taxpayer information from access to the Zilog computer already have access to such information through their jobs. In addition, the Union denies that its proposal would conflict with 5 CFR Section 735,205, stating that the proposal is intended to authorize use of the computer system for "official" union business, which it says was meant to exclude "internal" union business. The Union states that it proposes to make the same use of the computer that it makes of typewriters in other Denver District offices and that the proposal is necessary because typewriters are scarce. B. Analysis The question raised by the Agency regarding whether Proposal 1 is a proper subject for bargaining under the reopener clause cannot be resolved in this decision. 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 raised in other appropriate proceedings. See, for example, 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 at 306, n. (1984). Proposal 1 reflects the increased automation of Government work and the increased efficiencies of agency operations realized by that automation. There are, however, corresponding responsibilities which result from the automation, primarily responsibilities relating to the internal security of automated systems and access to their use. The legitimate security, privacy, and mission accomplishment concerns of management must be recognized, as well as the benefits of the Union of access to such systems. In the instant case, the Union asserts without contradiction, that "typewriters are scarce at ACS." Union Petition for Review at 3. The Agency counters that it "does not have the capabilities to ensure limited access to only the word processing functions," and that the proposal would provide the Union with access to "confidential taxpayer information." Agency Statement of Position at 6. The Agency does not, however, dispute the Union's assertions that the Union officials who would use the password are employees of the Agency who "already have access to confidential taxpayer information." Union Response at 2. Insofar as it appears from the record, the Union would not gain any additional access to taxpayer information by obtaining a password enabling it to use the word processing functions of the computer system. For this reason, the instant case is distinguishable from the cases concerning internal security practices cited by the Agency, National Federation of Federal Employees, Local 1827 and Defense Mapping Agency, Aerospace Center, St. Louis Air Force Station, Missouri, 16 FLRA 791 (1984), and National Labor Relations Board Union and General Counsel of the National Labor Relations Board, 5 FLRA 696 (1981). Defense Mapping Agency concerned agency attempts to prevent the disclosure of classified information to the public which employees learned in the course of their jobs. National Labor Relations Board concerned a proposal which would have allowed employees to have access to confidential information which otherwise would not have been available to them. The Authority has previously recognized the negotiability of proposals concerning a union's use of agency facilities for the conduct of official union business. See, for example, American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patternson Air Force Base, Ohio, 2 FLRA 603 (1980) (Proposal II), enforced sub nom. Department of Defense v. FLRA 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). Our holding in the instant case is a continuation of that line of precedent. It must be a careful, case-by-case continuation in light of concerns for the integrity of automated systems containing information such as that in this case. Finally, we turn to the question of whether the proposal conflicts with 5 CFR Section 735.205, as claimed by the Agency, because it is intended to allow use of the computer for internal union business. The proposal states that the computers will be used for official union business. The Union states that the proposal was intended to exclude internal union business. The Union's statement as to the meaning is consistent with the wording of the proposal and we adopt it for the purpose of this decision. In the related context of official time for employees representing a union, we have held that activities involving labor-management contacts, as well as preparation for them, are not internal union business. National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration Medical Center, Brockton/West Roxbury, Ma., 23 FLRA No. 74, slip op. at 2-3 (1986). The Agency does not claim, nor does the record establish, that use of Government property in connection with carrying out official Union business would be prohibited by 5 CFR Section 735.205. CONCLUSION The Agency has not established that Union Proposal 1 conflicts with 5 CFR Section 735.205 or with the Agency's right to determine its internal security under section 7106(a)(1). Therefore, it is within the duty to bargain. IV. Proposal 2 Section 4. Each employee will be provided with a locker for his/her personal effects. Management will not inspect these without good reason. If it becomes necessary to inspect a locker it will be done with at least two people present, one of which is the affected employee or his/her designated union representative. A. Positions and the Parties The Agency's sole contention regarding Proposal 2 is that it involves matters which were not delegated to local bargaining by the national ACS agreement. The Union argues that the issue presented by the proposal is properly negotiated at the local level because, while the provision of lockers themselves was negotiated at the national level, the question of procedures to be followed in Agency inspection of lockers is a local issue which has surfaced since the negotiation of the National ACS agreement. The Union also argues that it has not waived its right to negotiate over the proposal. In addition, the Union states that the proposal is negotiable, consistent with Authority precedent holding that proposals requiring that employees be permitted to be present during a search of their work area are negotiable. National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 9 FLRA 983 (1982); National Treasury Employees Union and NTEU Chapter 61 and Department of the Treasury, Internal Revenue Service, Albany District, New York, 7 FLRA 304 (1981) B. Analysis As stated in connection with the discussion of Proposal 1, the factual questions concerning the duty to bargain are not appropriately considered in a negotiability appeal. 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 raised in other appropriate proceedings. See Wurtsmith Air Force Base, 14 FLRA at 306 n.6. Thus, the Authority will not consider further the Agency's arguments about whether Union proposal 2 concerns an appropriate subject for bargaining. Turning to the substance of the proposal, we find, in agreement with the Union, that it is negotiable. In Internal Revenue Service, Albany District, New York, 7 FLRA 304, the Authority found that a similar proposal which prevented management from examining the contents of an employee's desk without the employee being present was negotiable. The Authority concluded in that case that the proposal did not prevent the agency from determining its internal security practices under section 7106(a)(1) of the Statute nor did it concern a method or means of performing work. Similarly, for the reasons set forth more fully in Internal Revenue Service, Albany District, New York, Union proposal 2 is negotiable. V. Order The Agency must, upon request (or as otherwise agreed to by the parties) bargain concerning the Union's proposals. /2/ Issue, Washington, D.C. November 26, 1986. Jerry L. Calhoun, Chairman Henry B. Frazier III, Member Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) The Union withdrew its appeal of the remaining proposals originally submitted. They will not be considered further here. (2) In finding these proposals to be within the duty to bargain, the Authority makes no judgment as to their merits.