34:0977(159)NG - - AFGE Council 214 and Air Force, Air Force Logistics Command, Wright-Patterson AFB, OH - - 1990 FLRAdec NG - - v34 p977



[ v34 p977 ]
34:0977(159)NG
The decision of the Authority follows:


34 FLRA No. 159

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 214

(Union)

and

DEPARTMENT OF THE AIR FORCE

AIR FORCE LOGISTICS COMMAND

WRIGHT-PATTERSON AIR FORCE BASE, OHIO

(Agency)

0-NG-1652

DECISION AND ORDER ON NEGOTIABILITY ISSUES

February 26, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The Union seeks review of the allegation by the Agency that two proposals are nonnegotiable.(*)

The proposals concern access to Tinker and Robins Air Force Bases. Proposal 1 requires the Agency to permit Union officials who do not work at Tinker Air Force Base to gain access to the base in either the same way that commercial vendors do or the same way that other Air Force Logistics Command facilities permit, whichever procedure is less rigid. Proposal 2 requires that, with respect to a female Union president, Robins Air Force Base must follow either: (1) the same access procedures that other Air Force Logistics Command facilities use for the male Union presidents, or (2) the procedures used for other employees at Robins Air Force Base, whichever are less rigid. Both proposals also provide that, upon the Union president's request, credentials for entry onto the bases are to be granted to the Union president for 3 years.

For the following reasons, we find that the proposals are nonnegotiable because they directly interfere with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.

II. Proposals 1 and 2

Proposal 1

Procedures for AFGE Council 214 Local representatives, who are not Air Force employees, to gain access to an AFLC facility will be as follows:

a. Same procedures as those followed by commercial venders {sic}, contractors, etc., without discrimination against AFGE Union representatives or the same procedures as those followed by the greater majority of AFGE Council 214 Local Representatives, who are not Air Force employees, whichever are less rigid.

b. AFLC management will issue the proper base entry credentials, as appropriate, for a three (3) years {sic} period upon request by the AFGE Local President.

Proposal 2

Procedures for female AFGE Council 214 Local Presidents, who are Air Force Employees, to gain access to an AFLC facility will be as follows:

a. Same procedures as those followed by male AFGE Council 214 Local Presidents without discrimination against AFGE female Union

Presidents or the same procedures followed by AFLC employees at Robins AFB, whichever is less rigid.

b. AFLC management will issue the proper base entry credentials, as appropriate, for a three (3) years {sic} period upon request by the AFGE Local President.

III. Positions of the Parties

A. The Agency

The Air Logistics Centers, including the Warner Robins Air Logistics Center and the Oklahoma City Air Logistics Center, enable the Air Force Logistics Command to provide "logistics resources necessary to keep Air Force units and weapon systems in a state of readiness and to sustain their operations in peace, war, and contingencies." Statement of Position at 1. The Agency states that the Oklahoma City Air Logistics Center, located at Tinker Air Force Base, "manages a large family of aircraft engines" and "provides worldwide logistics support for a variety of weapon systems, including the B-1B and B-52 aircraft[.]" Id. at 2. The Agency also states that the Warner Robins Air Logistics Center, located at Robins Air Force Base, "provides worldwide logistics management for" various airplanes and weapons including "the F-15 air superiority fighter, C-130, C-140, and C-141 cargo aircraft, as well as utility aircraft, helicopters, air-to-air missiles, air-to-ground missiles, a ground-to-air missile and drone, and remotely piloted vehicles." Id.

The Agency contends that because the Air Logistics Centers deal with "highly sensitive and expensive hardware, security becomes a very real concern." Statement of Position at 2. According to the Agency, the Air Logistics Centers issue certain types of security badges or credentials "to restrict entrance to the Center[s] and movement within the complex." Id. The Agency argues that the proposals "attempt to dictate decisions reserved to management by the Statute" and asserts that "by dictating what type of security badge will be issued, who will receive what type of security badge, and for what period of time a security badge will be issued[,]" the proposals "clearly, directly, and unequivocally interfere with the Agency's right to determine its internal security practices[.]" Statement of Position at 4.

With respect to the subject matter of Proposal 1, the Agency asserts that its requirement that Union representatives who were not Air Force employees obtain visitor badges rather than being issued temporary identification credentials was established at the Oklahoma City Air Logistics Center as part of an "improvement of internal security." Id. at 2. With respect to the subject matter of Proposal 2, the Agency asserts that its refusal to issue the Union President a new access badge to Warner Robins Air Logistics Center was done "consistent with the aforementioned security requirements[.]" Id. at 3.

The Agency cites previous Authority decisions in which the Authority found that proposals dealing with an agency's "plan to control access to its facility and to certain work areas within its facility, and who must possess and display identification cards or badges" were outside the duty to bargain because they "interfered with or negated" the agency's right to determine its internal security practices. Statement of Position at 6. The Agency states that the "Authority's ruling in those cases should be equally applicable in the present case" because the proposals in the cases cited are "so similar in content and effect to the instant case, that they are indistinguishable in their attempt to thwart a right reserved to management under the Statute." Id. at 6, 8. The Agency argues that because the Union's proposals "would have the effect of negating management's determination of the type of security badges to be issued, to whom they will be issued, and for what period of time they will be issued[,]" the proposals are not procedures within the meaning of section 7106(b)(2) of the Statute. Id. at 7.

The Agency notes that "the very substance of" the Union's proposals "has been the subject of two separate [unfair labor practice] proceedings before the FLRA" against the Oklahoma City and Warner Robins Air Logistics Centers and that in both cases "the FLRA determined not to issue a complaint, acknowledging the [A]gency's right to determine its internal security practices." Statement of Position at 7. The Agency asserts that the substance of the Union's current proposals has "been reviewed under [unfair labor practice] proceedings" and has "already been determined to be outside the duty to bargain." Id. The Agency concludes that because the Union "has not raised any matter here which was not raised" in the previous unfair labor practice proceedings, "the Union's Petition should be dismissed." Id.

B. The Union

The Union asserts that Union representatives at Tinker Air Force Base are currently confronted with rigid entry requirements which are "time consuming, disruptive, annoying" and have "a chilling effect on employees." Petition for Review, Attachment 2 at 1. The Union contends that the additional procedures required of these representatives constitute "inequitable treatment" because: (1) no other AFGE Local representatives "who are not Air Force employees are required to undergo such rigid procedures"; and (2) commercial vendors are not required to undergo the same rigid procedures to enter the base. Id.

The Union states that subsection a. of Proposal 1 is meant to ensure that Union representatives are "treated equally or without discrimination in gaining access to" Tinker Air Force Base, just as commercial vendors or contractors who "gain access on a daily basis without the rigid procedures imposed on our Union Representatives." Petition for Review, Attachment 1 at 1. The Union asserts that the second sentence of Proposal 1 means that representatives are to receive "equitable treatment as to procedures" when compared with the entry requirements that Union representatives face at other Air Force Logistics Command facilities. Id.

The Union contends that subsection a. of Proposal 2 is meant to address a situation where a female Union president "is required to undergo the same rigid procedure" that is encountered by the representatives at Tinker Air Force Base, "who are not Air Force employees." Petition for Review, Attachment 2 at 1. The Union further asserts that the female Union President "is being treated differently than the other AFGE male Local Presidents who are Air Force employees like her" and that the proposal is meant to ensure equitable treatment for that president as compared to either: (1) the access procedures used for the other Union presidents at other Air Logistics Centers; or (2) the access procedures used for employees at Robins Air Force Base. Id. at 2.

According to the Union, subsection b. of Proposal 1 means that upon the Union President's request, representatives are to receive base entry credentials for 3 years. The Union states that subsection b. of Proposal 2 and subsection b. of Proposal 1 have the same meaning. Petition for Review, Attachment 1 at 1, 2.

The Union did not submit a response to the Agency's statement of position.

IV. Discussion

A. Procedural Issue

The Agency asserts that the Union's negotiability petition should be dismissed because the Union's previous unfair labor practice charges on this matter were dismissed by the General Counsel. The Agency cites National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, Honolulu, Hawaii, 11 FLRA 17 (1983) (NTEU) to support its assertion that because the Union "has not raised any matter here which was not raised in the [unfair labor practice] proceedings[,] . . . the Union's Petition should be dismissed." Statement of Position at 7. The Union did not respond to this argument.

In NTEU, the Authority made determinations on the negotiability of proposals that a union had presented in an unfair labor practice case. The Authority concluded that the proposals were not inconsistent with management's rights and agreed with the Administrative Law Judge's recommendation that the agency be required to bargain. NTEU at 17-18. Because the Authority's decision in that unfair labor practice case disposed of the negotiability issues, the Authority dismissed the related negotiability case. See also, American Federation of Government Employees, AFL-CIO, Local 1501 and Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 24 FLRA 470, 472 (1986).

Unlike NTEU, in this case the Authority has not made a decision on the negotiability of the Union's proposals. The statements made in the Regional Director's decision not to issue an unfair labor practice complaint do not constitute a determination by the Authority on the negotiability of the Union's proposals. Because the negotiability issue has not yet been resolved by the Authority, we will consider the proposals on the merits. See American Federation of Government Employees, AFL-CIO, Local 3399 and Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri, 9 FLRA 1022, 1023 n.2 (1982) (although the Regional Director refused to issue a complaint in the union's related unfair labor practice case, the Authority reviewed the merits of the union's proposal and did not rely on the Regional Director's prior conclusion that the proposal was nonnegotiable).

B. The Proposals Interfere with the Agency's Right to Determine its Internal Security Practices

An agency's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the right to determine policies and take actions which are part of its plan to secure or safeguard its personnel and physical property. See National Federation of Federal Employees, Local 15 and U.S. Army Armament, Munitions and Chemical Command, Rock Island Arsenal, Rock Island, Illinois, 30 FLRA 472 (1987); National Association of Government Employees, SEIU, Local R7-51 and Department of the Navy, Navy Public Works Center, Great Lakes, Illinois, 30 FLRA 415 (1987). The agency's right to determine its internal security practices also includes management actions to prevent improper or unauthorized disclosure of information, or to prevent disruption of the agency's activities. Federal Union of Scientists and Engineers, National Association of Government Employees, Local R1-144 and Naval Underwater Systems Center, Newport, Rhode Island, 28 FLRA 352, 356 (1987) (Naval Underwater Systems Center).

Restrictions on access to an agency's facilities to protect agency property or to safeguard classified information may constitute an agency's determination of its internal security practices. Naval Underwater Systems Center, 28 FLRA at 356; 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, 941 (1986). The determination of an agency's internal security practices may include an agency decision which prevents union officials from entering parts of its facilities. See National Treasury Employees Union and Internal Revenue Service, 7 FLRA 275, 277 (1981) (Internal Revenue Service) (a proposal to allow union representatives to enter all work areas was inconsistent with section 7106(a)(1) of the Statute because it had the effect of negating or reversing the agency's policy of preventing the unauthorized disclosure of tax data).

Where an agency shows a link or reasonable connection between its goal of safeguarding personnel or property and its practice or decision designed to implement that goal, a proposal which directly interferes with or negates the agency's practice or decision conflicts with the agency's right under section 7106(a)(1). See American Federation of Government Employees, AFL-CIO, Local 1411 and Department of the Army, Fort Benjamin Harrison, 32 FLRA 990, 993 (1988) (Department of the Army); Department of the Air Force, 30 FLRA at 1028.

The Agency argues that by "dictating what type of security badge will be issued, who will receive what type of security badge, and for what period of time a security badge will be issued[,]" the proposals in this case "attempt to dictate decisions reserved to management by the Statute." Statement of Position at 4. The Agency contends that its base entry procedures improve security by restricting access in areas where "highly sensitive and expensive hardware" is located and which provide "logistics resources necessary to keep Air Force units and weapon systems in a state of readiness and to sustain their operations[.]" Id. at 1, 2. The Union does not refute the Agency's stated purpose behind its entry procedures.

We find that the Agency's entry procedures are linked to its stated purpose of maintaining the security of its sensitive equipment, such as weapon systems and aircraft engines. By requiring the Agency to: (1) follow less rigid procedures for Union officials attempting to enter Tinker and Robins Air Force Bases than it currently follows; and (2) issue entry credentials to Union officials for a specified period of time, the proposals directly interfere with the Agency's security plan and, therefore, are inconsistent with the Agency's section 7106(a)(1) right to determine its internal security practices. See Naval Underwater Systems Center; Internal Revenue Service. Because the proposals directly interfere with management's rights under section 7106, they do not constitute negotiable procedures under section 7106(b)(2) of the Statute. See Department of the Army, 32 FLRA at 995. Consequently, we find that the proposals are nonnegotiable.

We note the Union's argument that the Agency's entry procedures are "time consuming, disruptive, [and] annoying" and constitute "inequitable treatment[.]" Petition for Review, Attachment 2 at 1. This argument appears to constitute a claim that the Agency's conduct is an unfair labor practice. However, where, as here, a link has been established between an agency's action and its expressed security concerns, the Authority will not review the merits of the agency's action in the course of resolving a negotiability dispute. See 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. A