29:0261(27)NG - AFGE, LOCAL 1759 VS ARMY, FORT MCPHERSON, HQ



[ v29 p261 ]
29:0261(27)NG
The decision of the Authority follows:


29 FLRA NO. 27


AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1759

              Union

       and

DEPARTMENT OF DEFENSE
DEPARTMENT OF THE ARMY
HEADQUARTERS, FORT MCPHERSON,
GEORGIA

              Agency

Case No. 0-NG-1266

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 three proposals. For the reasons set forth below, we find that Proposals 1, 2, and 3 are negotiable.

II. Proposal 1

All handcarried items, with the exception of "personal belongings;" i.e., pocketbooks, wallets, and bags or boxes containing perishable food items to be consumed at work, shall be checked at the desk area at the entrance to the commissary, to be secured by management, who has ultimate responsibility for their safe-keeping, and to be available to employees any time during the day.

A. Positions of the Parties

The Agency contends that Proposal 1 is contrary to sections 7106(a)(1) and (2) and 7106(b) of the Statute. The  Agency contends that Proposal 1 conflicts with management's right to determine its internal security practices under section 7106(a)(1) because it interferes with components of its plan to safeguard commissary stock from pilferage. The Agency contends that Proposal 1 conflicts with management's right to assign work under section 7106(a)(2)(B) and management's right to determine the number of employees assigned to an organizational subdivision and tour of duty under section 7106(b)(1). The Agency argues that because Proposal 1 requires management to secure employees' belongings, be responsible for their safe-keeping, and to provide them to employees at any time during the day, it assigns these duties to management. The Agency also argues that the imposition of these duties would require it to hire additional employees.

The Union contends that Proposal 1 is within the duty to bargain. The Union argues that Proposal 1 establishes a procedure under section 7106(b)(2) by which the Agency will maintain its internal security practice. The Union also argues that Proposal I constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

B. Analysis and Conclusion

We find that Proposal 1 is within the duty to bargain.

In American Federation of Government Employees, AFL - CIO, Local 32 and Office of Personnel Management, Washington D.C., 14 FLRA 6 (1984) (Proposal 2), enforced sub nom. FLRA v. Office of Personnel Management, 778 F.2d 844 (D.C. Cir. 1985), the Authority found that a proposal which required the Agency to provide adequate security to all employees did not interfere with management's right to determine its internal security practices because it concerned the health and safety of the Agency's employees rather than its internal security. Additionally, the Authority found that even if the proposal in Office of Personnel Management did concern "internal security" it vested discretion in the agency to determine what level of security was "adequate" and, therefore, would not be inconsistent with the agency's right to determine its internal security practices. See also National Federation of Federal Employees and Haskell Indian Junior College, Bureau of Indian Affairs, Department of the Interior, Lawrence, Kansas, 22 FLRA No. 57 (1986) (Proposal 8). 

Proposal 1 in this case is substantially the same as the proposals found to be within the duty to bargain in Office of Personnel Management and Haskell Indian Junior College. Proposal 1 requires the Agency to take steps to provide security within the prescribed area for those items which its employees bring with them to work. It leaves to the Agency's sole discretion decisions as to the implementation of the contractual standard. Accordingly, we find that Proposal 1 does not violate the Agency's right under section 7106(a)(1) of the Statute to determine its internal security practices.

We also find that Proposal 1 does not interfere with management's rights to assign work under section 7106(a)(2)(B) and to determine the number of employees assigned to an organizational subdivision and tour of duty under section 7106(b)(1). The Union concedes that: (1) Proposal 1 does not require the Agency to assign the specific duties of securing the prescribed area and the employees' handcarried items to any specific employee, management or otherwise, or any organizational unit; (2) decisions as to the specific personnel who will be required and their duty assignments are left to management; and (3) all specifics of the implementation of Provision 1 are left to management. Union Response at 14-16. Consequently, Proposal 1 does not prescribe any specific duties to be performed by non-bargaining unit personnel and does not require assignment of the duties of maintaining the desk area and safeguarding employees' belongings to management. Accordingly, we find that Proposal 1 is within the duty to bargain.

III. Proposal 2

Employees have a reasonable expectation of privacy in their personal belongings and in lockers furnished to them by the government. Searches of personal belongings or employee lockers may be permitted only on the basis of reasonable suspicion, based on specific objective facts and reasonable inferences drawn from those facts.

A. Positions of the Parties

The Agency contends that Proposal 2 conflicts with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency argues that by conditioning searches on "reasonable  suspicion," "specific objective facts," and "reasonable inferences" Proposal 2 restricts the circumstances under which employee lockers may be searched.

The Union contends that Proposal 2 is within the duty to bargain and does not conflict with management's right to determine its internal security practices. The Union argues that Proposal 2 does not improperly restrict the Agency in searching employee lockers. Rather, the proposal merely incorporates the constitutional guarantee of freedom from an unreasonable search. The Union also argues that permitting searches only on the basis of a "reasonable suspicion" is an appropriate arrangement under section 7106(b)(3) of the Statute for employees adversely affected by management's exercise of its right to maintain internal security.

B. Analysis and Conclusion

We find that Proposal 2 is within the duty to bargain.

The Agency relies on two Authority decisions, National Treasury Employees Union, Chapter 21 and Department of the Treasury, Bureau of Engraving and Printing, 18 FLRA 405 (1985) and National Association of Government Employees, SEIU, AFL - CIO and Department of the Air Force, Scott Air Force Base, Illinois, 16 FLRA 361 (1984), to support its contention that Proposal 3 is outside the duty to bargain. Its reliance is misplaced. In those cases the proposals held to be nonnegotiable limited searches to instances "authorized by warrant and/or incident to an arrest" and to instances in which the Agency had "sufficient and reasonable grounds to suspect that the employee has stolen an item(s) and is attempting to transport it from the premises." In contrast, Proposal 3 merely requires that any search of an employee locker be based on a "reasonable suspicion." The United States Supreme Court has specifically held that in searches conducted pursuant to an investigation of work-related misconduct a public employer may intrude on the constitutionally protected privacy interests of Government employees based upon a standard of reasonableness. O'Conner v. Ortega, 107 S. Ct. 1492, 1502 (1987). It is undisputed that the searches of employee lockers contemplated by the Agency are to be conducted pursuant to an investigation of potential work-related misconduct: the theft of its property. Agency Statement of Position at 4; Union Response at 18, 23. Proposal 2 does not prevent the Agency from searching employee lockers to safeguard its property. Rather, in our  view, it merely incorporates into the parties' collective bargaining agreement the reasonableness standard established by the Supreme Court for searches of an area given over to a government employee for his exclusive use.

Moreover, the Authority has found proposals substantially similar to Proposal 2 to be within the duty to bargain. See, for example, National Treasury Employees Union and Internal Revenue Service, Denver District, 24 FLRA No. 30 (1986) (Proposal 2). Therefore, we find Proposal 2 to be within the duty to bargain.

IV. Proposal 3

In all cases, except compelling circumstances, inspections of lockers will be conducted in the presence of the employee who is utilizing that locker, and in such a manner as to avoid undue embarrassment to the employee. In cases of compelling circumstances, every effort will be made by the Employer to contact the employee before undertaking such inspection, and certification of those efforts will be made to the Local President.

A. Positions of the Parties

The Agency contends that Proposal 3 conflicts with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency acknowledges that based on Authority precedent, specifically National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 9 FLRA 983 (1982), that there are circumstances in which an employee's presence during a search of his possessions is negotiable. The Agency argues that Proposal 3 is distinguishable because it limits the Agency's right to search an employee's locker outside the employee's presence to "compelling circumstances." The Agency argues that this limitation prevents management from acting at all to account for commissary property.

The Union contends that Proposal 3 is within the duty to bargain based on U.S. Customs Service. The Union argues that the proposal does not prevent the Agency from acting at all because requiring the employee to be present "except in compelling circumstances" does not prevent the Agency from searching the locker in the employee's absence. It only  restricts the Agency in making unattended searches to "compelling circumstances." The Union recognizes that this limitation may result in delays in searching lockers but contends that delaying the search until the employee is present does not prevent the Agency from protecting its property against loss. The Union argues that Proposal 3 establishes a procedure under section 7106(b)(2) of the Statute.

B. Analysis and Conclusion

We find that Proposal 3 is within the duty to bargain.

In National Treasury Employees Union and Internal Revenue Service, Denver District, 24 FLRA No. 30 (1986), we found that Proposal 2 did not prevent the Agency from determining its internal security practices under section 7106(a)(1) of the Statute. The proposal in that case required that each employee would be provided a locker and that the locker would not be searched unless two people were present, one of whom was to be the employee or his union representative. We held that Proposal 2 merely modified the procedure by which management could attain its objective of internal security by requiring that any search be postponed until the employee was present. See also National Treasury Employees Union and NTEU Chapter 61 and Department of the Treasury, Internal Revenue Service, Albany District, New York, 7 FLRA 304, 306-307 (1981).

Proposal 3 in this case is substantially similar to Proposal 2 in Internal Revenue Service, Denver District. Proposal 3 provides that inspections of employee lockers will be conducted in the presence of the employee using the locker, except in compelling circumstances. By providing for unattended searches in compelling circumstances, Proposal 3 is less restrictive than Proposal 2 in Internal Revenue Service, Denver District. We find that Proposal 3 merely modifies the procedure by which management inspects employee lockers by requiring the Agency to postpone any searches until the employee is present. This procedural modification is consistent with the Agency's internal security practices. Accordingly, Proposal 3 is within the duty to bargain under section 7106(b)(2) of the Statute since it constitutes a procedure which the Agency will observe in exercising its management right to determine its internal security practices. 

V. Decision

The Agency must bargain upon request, or as otherwise agreed to by the parties, concerning Proposals 1, 2 and 3. 1

Issued, Washington, D.C., September 30, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY