33:0304(37)NG - - IFPTE Local 25 and Navy, Mare Island Naval Shipyard, Vallejo, CA - - 1988 FLRAdec NG - - v33 p304
[ v33 p304 ]
The decision of the Authority follows:
33 FLRA No. 37
FEDERAL LABOR RELATIONS AUTHORITY
INTERNATIONAL FEDERATION OF PROFESSIONAL
AND TECHNICAL ENGINEERS
DEPARTMENT OF THE NAVY
MARE ISLAND NAVAL SHIPYARD
DECISION AND ORDER ON NEGOTIABILITY ISSUE
October 25, 1988
Before Chairman Calhoun and Member McKee.
I. Statement of the Case
This case is before the Authority because of a negotiability appeal filed by the International Federation of Professional and Technical Engineers, Local 25 (the Union) under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of one Union proposal which seeks to determine how military guards at the Mare Island Naval Shipyard, Vallejo, California (the Agency) carry their weapons and ammunition. We conclude that the proposal is outside the duty to bargain because it would directly interfere with management's right to determine internal security practices under section 7106(a)(1).
United States Marines guard and patrol the drydock areas of the Mare Island Naval Shipyard in order to safeguard highly sensitive national defense equipment which is serviced and repaired at the facility. The guards also patrol the area when sensitive materials are transported to and from the Shipyard. This dispute arose when the Agency changed its policy concerning the arming of Marines. Formerly, Marine guards were required to carry their weapons unloaded and on their shoulders when they patrolled the shipyard. The new policy requires the guards to patrol certain areas of the Shipyard with loaded weapons in hand.
Marines carry loaded magazines in pouches, not in weapon. Marines carry weapons at sling arms.
IV. Positions of the Parties
The Agency contends that the proposal does not concern the conditions of employment of bargaining unit employees because it is directed at individuals who are not in the bargaining unit. The Agency also asserts that the proposal conflicts with management's right to determine internal security practices under section 7106(a)(1). According to the Agency, the proposal would prevent the Agency from implementing its determination that the carrying of loaded weapons by military guards is necessary for the security of the facility.
The Union contends that the proposal concerns the conditions of employment of bargaining unit employees because there is a direct relationship between the new procedure regarding the carrying of weapons and the safety of unit employees. The Union also argues that the proposal does not interfere with the mission of the Marines at the Shipyard. The Union maintains that requiring the guards to carry loaded magazines in pouches attached to their utility belt and weapons "at sling arms" (on the shoulder) "does not reduce nor interfer[e] with the ability of the Marines to '. . . guard certain highly sensitive national defense facilities/equipment/materials . . . .' at the shipyard." Union's Response to Agency's Statement of Position at 3. The Union contends that "[t]here has been neither terrorist activity nor a perception of increased terrorist activity" in the area. Id. at 2. According to the Union, therefore, Marines can adequately protect the Shipyard on patrols because the proposal does not prohibit them from carrying loaded weapons in hand when there is a clear and present danger. The Union asserts that under the Agency's regulations, the Agency may seek a waiver of the requirement that the guards be armed.
We conclude that the proposal is nonnegotiable because it interferes with the Agency's right to determine its internal security practices.
The proposal is intended to apply to the military guards who patrol the Agency's facility. The proposal would establish the policies governing the use of weapons and ammunition by military guards when conducting patrols to safeguard the Agency's property and personnel. The Union states that the proposal is intended to ensure the safety of bargaining unit employees who interact with the guards on a regular basis. See Union's Response at 2. Even assuming for the purpose of this decision that the proposal concerns the conditions of employment of bargaining unit employees, the proposal is nonnegotiable because it interferes with the Agency's right to determine internal security practices.
The Authority has consistently held that an agency's right to determine internal security practices includes the right to determine the policies and practices that are necessary to safeguard its operations, personnel and physical property against internal or external risks. See National Association of Government Employees, Local R4-6 and Department of the Army, Fort Eustis, Virginia, 29 FLRA 966 (1987) (Proposals 1 and 2); American Federation of Government Employees, AFL-CIO, Local 987 and Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 24 FLRA 940 (1986). The proposal relates to changes in the policy governing the use of weapons by military guards which were implemented by the Agency to address the "heightened awareness of terrorist activity" around highly sensitive national defense facilities. See Agency's Statement of Position at 1. See also Union's Response at 1. The Agency determined that the new weapons practice was necessary to safeguard its operations, personnel and physical property against the threat of terrorist activity.
An agency's determination as to whether, and to what extent, personnel providing security for its employees, property and operations are to be armed is a decision concerning the agency's internal security practices. Because the proposal would preclude the Agency from adopting a policy requiring military personnel guarding its installations to carry loaded weapons, it interferes with management's right to determine the internal security practices which will be followed in protecting Agency property and personnel. See National Federation of Federal Employees, Local 1623 v. FLRA, 852 F.2d 1349, 1353 (D.C. Cir. 1988) ("the military enjoys special status, and its decisions involving the organization of security forces are especially shielded from outside interference").
The Union challenges the Agency's determination that the new weapons policy is necessary to safeguard its installations. The Union asserts that there is not currently a threat to the Agency's operations which is sufficient to require the change in security practices which was implemented by the Agency. We have previously stated that the Authority will not review an agency's determination that a particular internal security practice is necessary to protect the security of its installations where a link has been established between an agency's action and its expressed security concern. That determination is a judgment committed to management under section 7106(a)(1) of the Statute. National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 30 FLRA 1046, 1056 (1988), remanded as to other matters sub nom. Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois v. FLRA, No. 88-1239 (D.C. Cir. May 25, 1988).
The Agency states that the Marine guards have the responsibility of protecting highly sensitive equipment and material which is serviced and transported to and from its facility. The Agency identified an increased threat of terrorist activity and determined that the preexisting policy prohibiting security personnel from carrying loaded weapons posed an unwarranted danger to Marines. See Enclosure 5, attached to Union's Response. The Agency, therefore, implemented the weapons practice to "effectively protect the security of some of our nation's most sensitive military operations." Agency's Statement at 2. The Agency has demonstrated a sufficient link between the new security practice and its goal of protecting the security of its installations from internal and external risks.
Moreover, the fact that the Agency may seek a waiver of the requirement that the military guards be armed does not render the proposal negotiable. The decision to request a waiver is a determination of what the Agency's security policy will be, a matter wholly within the Agency's discretion under section 7106(a)(1) of the Statute.