29:0261(27)NG - AFGE, LOCAL 1759 VS ARMY, FORT MCPHERSON, HQ
[ v29 p261 ]
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
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