24:0249(30)NG - NTEU and IRS, Denver District -- 1986 FLRAdec NG



[ v24 p249 ]
24:0249(30)NG
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 Auth