35:0706(78)NG - - NFFE Local 2050 and EPA - - 1990 FLRAdec NG - - v35 p706



[ v35 p706 ]
35:0706(78)NG
The decision of the Authority follows:


35 FLRA No. 78

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 2050

(Union)

and

U.S. ENVIRONMENTAL PROTECTION AGENCY

(Agency)

0-NG-1655

DECISION AND ORDER ON NEGOTIABILITY ISSUES

April 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 under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of three proposals, relating to employee security, that the Agency contends interfere with management's rights to: determine its internal security practices; direct employees; assign work; and determine the technology, methods and means of performing work. Additionally, the Agency contends that Proposal 1 interferes with the right to make determinations with respect to contracting out. For the reasons that follow, we find that Proposal 1 is negotiable, as an appropriate arrangement under section 7106(b)(3), and that Proposals 2 and 3 do not interfere with any of the management rights enumerated by the Agency and are negotiable.

II. Background

The Agency maintains facilities in the Washington, D.C. area at Waterside Mall, the Fairchild Building, and Crystal City Mall. In recent years there have been a number of incidents of theft, vandalism and assault, including one knife attack that resulted in death, involving Agency employees in and around those facilities. The Union's proposals are intended to enhance the security of employees and their personal property at those facilities.

III. Proposal 1

2. All hand carried items by couriers for bargaining unit employees shall be checked at the front desk area at the main entrances to the EPA Headquarter facilities, to be secured by management and made available to the bargaining unit employees at any time during the day.

A. Positions of the Parties

The Agency argues that Proposal 1 interferes with management's rights to determine: (1) internal security practices, under section 7106(a)(1) of the Statute, by requiring it to screen the entrance of couriers into its facilities; and (2) the technology, methods, and means of performing work, under section 7106(b)(1), by requiring management to provide specific equipment to guards and employees. The Agency argues that Proposal 1 excessively interferes with these rights and is not negotiable as a procedure under section 7106(b)(2) or an appropriate arrangement under section 7106(b)(3) of the Statute. The Agency also asserts that Proposal 1 is nonnegotiable because it interferes with management's rights under section 7106(a) to direct employees, to contract out, and to assign work.

The Union states that the intent of Proposal 1 is to prevent the possibility of dangerous persons entering Agency work space. The Union contends that Proposal 1 does not interfere with the Agency's right to determine internal security but, rather, is a procedure, to be followed when couriers deliver materials to bargaining unit employees, that is negotiable under section 7106(b)(2).

In response to the Agency's assertion that Proposal 1 interferes with the right to determine the technology of performing work, the Union contends that the Agency has not established a technological relationship between the proposal and the performance of the Agency's work. The Union also denies the Agency's assertions that Proposal 1 conflicts with management's rights to direct employees, contract out, and assign work.

The Union contends that Proposal 1 is negotiable under section 7106(b)(3) as an appropriate arrangement under the analysis articulated by the Authority in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986). Applying that analysis, the Union contends that the Agency's practice of "allowing couriers and others to roam the hallways at will" has adversely affected employees by creating "hazards of assault and theft." Union Response at 7. The Union contends that the benefits that the proposal would afford to employees by providing protection from threats to their persons and property outweigh the proposal's minimal impact on management's rights.

B. Analysis and Conclusions

Under section 7106(a)(1) of the Statute, the right to determine internal security practices includes the agency's right to determine the policies and practices that are necessary to safeguard its operations, personnel and physical property against internal or external risks. See, for example, International Federation of Professional and Technical Engineers, Local 25 and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 33 FLRA 304 (1988). The Union states that the intent of Proposal 1 is to provide "physical protection of employees in the workplace and to protect their personal property." Union Response at 2. Based on this statement of intent, which is consistent with the wording of the proposal, we conclude that Proposal 1 would require the Agency to adopt a particular practice to safeguard, among other things, its personnel. Consequently, Proposal 1 would impose an internal security practice on the Agency and, therefore, directly interferes with the Agency's management right. See Fraternal Order of Police, Lodge 1F (R.I.) Federal and Veterans Administration, Veterans Administration Medical Center, Providence, Rhode Island, 32 FLRA 944 (1988) (Proposals 6 and 7, which required an agency to provide particular equipment and staffing patterns for its police officers, interfered with the Agency's right to determine internal security practices).

The Agency also contends that Proposal 1 interferes with its right to determine the technology, methods and means of performing work. In support of this contention the Agency argues only that, "[p]roposals requiring management to provide specific equipment to guards and employees are nonnegotiable under section 7106(b)(1) when the equipment concerns the technology of performing the agency's work." Agency Statement of Position at 5. Nothing in the wording of Proposal 1 or the Union's statement of intent requires the Agency "to provide specific equipment to guards and employees." The proposal itself requires only that courier deliveries be left "at the front desk area" and "secured by management." In discussing the proposal, the Union suggests that the Agency can use existing guard desks to implement this requirement; however, the proposal neither requires the Agency to provide specific equipment or to continue to provide existing equipment to employees. Compare Veterans Administration Medical Center, Providence, 32 FLRA at 955-60 (proposal specifically requiring an agency to maintain two-way radio systems and vehicles for employee use in performing work interfered with the right to determine technology, methods and means of performing work). Consequently, we reject the Agency's argument that Proposal 1 would require it to provide "specific equipment to guards and employees."

The Agency asserts that Proposal 1 interferes with the right to direct employees in that it "directs management to take supervisory actions in accordance with qualitative standards set by the union proposal." Agency Statement of Position at 6. The Agency does not explain what it means by this statement in the context of the proposal and it is not apparent to us how the proposal directs such management action. Consequently, we reject the Agency's assertion.

The Agency asserts that Proposal 1 conflicts with the right to contract out by interfering with the method by which contractors carry out their responsibilities and by setting out a standard for contracting out. Additionally, the Agency contends that Proposal 1 "sets out internal management controls over contracting out activities[.]" Agency Statement of Position at 6. Because the Agency does not explain, and it is not otherwise apparent to us, how the proposal sets a standard for, or internal management controls over, contracting out, we reject this Agency assertion.

We also reject the Agency's unexplained assertion that the proposal interferes with the method by which contractors carry out their responsibilities. This assertion appears to be based on the facts that, under the proposal, someone would be required to perform tasks associated with receiving and holding courier deliveries and that the Agency currently staffs its guard desks with contractor personnel. We interpret this assertion to mean that, if the proposal would result in contractor personnel performing those duties, the proposal interferes with the right to contract out. This claim is similar to arguments that have been rejected by the Authority in the context of the management right to assign work. The Authority consistently has held that a proposal that does not specify to whom work must be assigned does not interfere with the right to assign work simply because it requires an agency to take some action and, by extension, to assign the work associated with that action to someone. See, for example, National Labor Relations Board Professional Association and General Counsel, National Labor Relations Board, 32 FLRA 557, 564-65 (1988). Here, by analogy, we find that, although implementing Proposal 1 would necessitate the assignment of tasks, the proposal does not specify that those tasks must be performed by contractor personnel. Thus, it does not conflict with the management right to contract out.

The Agency asserts that the proposal interferes with its right to assign work, because that right includes the right to determine the particular qualifications and skills needed to perform work, and whether a particular employee meets those qualifications. The proposal does not dictate the qualifications and skills necessary to perform any tasks associated with implementing the proposal or interfere with the Agency's ability to make determinations as to which employees meet whatever qualifications requirements the Agency may establish for such tasks. Therefore, we reject the Agency's assertion that the proposal conflicts with its right to assign work.

Now we turn to the Union's contentions that Proposal 1 is negotiable as a procedure under section 7106(b)(2) or as an appropriate arrangement under section 7106(b)(3). A proposal that directly interferes with a management right does not constitute a negotiable procedure under section 7106(b)(2). See Department of Defense, etc. v. FLRA, 659 F.2d 1140, 1150-52 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982). As discussed earlier, Proposal 1 directly interferes with the Agency's right to determine its internal security practices by imposing on the Agency a particular practice for safeguarding its personnel. Therefore, it is concerned with substantive matters and is not a negotiable procedure.

In determining whether a proposal is an appropriate arrangement for adversely affected employees, which is negotiable under section 7106(b)(3) of the Statute, the Authority first determines whether the proposal is intended to be an "arrangement" for employees adversely affected by management's exercise of a reserved right. Once the proposal is determined to be an "arrangement," the Authority determines whether the proposed arrangement is "appropriate," or whether it is inappropriate because it excessively interferes with management's rights. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986).

The Union asserts that Proposal 1 is intended to protect employees from "hazards of assault and theft" which result from the Agency's practice of allowing "couriers and others to roam the hallways at will." Union Response at 7. We conclude that Proposal 1 is intended to address the adverse effects on employees of the Agency's choice of internal security practices with respect to regulating access to its facilities. Therefore, the proposal is an "arrangement" within the meaning of section 7106(b)(3).

Having concluded that Proposal 1 is an "arrangement," we now consider whether it is "appropriate." In Kansas Army National Guard, 21 FLRA at 31-33, the Authority set forth several illustrative factors that it would consider in determining whether a proposed arrangement is appropriate or whether it is inappropriate because it excessively interferes with management's rights. The Authority indicated that, in future cases involving the applicability of section 7106(b)(3) to a proposal, it would expect the parties to address those, or any other relevant, factors. Here, the Agency asserts that the proposal excessively interferes with its management rights; however, it offers no supportive arguments or information addressed to the illustrative factors set forth in Kansas Army National Guard.(1) The Union, on the other hand, addresses those factors. The parties bear the burden of creating a record upon which the Authority can make a negotiability determination. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982). A party failing to meet its burden acts at its peril.

According to information submitted by the Union, Agency employees feel threatened as a result of a number of thefts and assaults that have occurred in and around Agency facilities in recent years. An Agency Headquarters Security Bulletin (August 1988) that was issued to employees stated that criminals who "roam the corridors of . . . office buildings" sometimes disguised as "repairmen, telephone technicians or maintenance workers" are suspected of being responsible for theft problems. Union Petition, enclosure 1. It is not unreasonable for employees to assume that "courier" may also be one of the disguises used. Clearly, thefts and assaults occurring at the workplace have a significant negative impact on employees. Because, as the Union points out, employees have little control over who is allowed access to Agency facilities, their control over the circumstances giving rise to workplace thefts and assaults is limited.

The proposal would affect the Agency's right to determine its internal security practices to the extent of requiring the Agency to limit the access of couriers to Agency facilities by receiving and holding courier deliveries for bargaining unit employees at the main entrances to its facilities. Although the Union, in its response, suggests that the Agency can use existing guard desks to implement the proposal, the proposal does not specify who would be responsible for performing the tasks associated with receiving and holding the deliveries. Therefore, under the proposal the Agency retains the discretion to decide how to implement the proposal, including whether it will rely on existing security personnel or assign other personnel to perform any necessary tasks. In our view, the burdens placed on the Agency by the proposal are limited.

On the other hand, the proposal would offer significant benefit to employees. Information submitted by the Union shows that employees have been experiencing thefts and assaults at Agency facilities. It is reasonable to assume that limiting access to Agency facilities would contribute to reducing such incidents and such a reduction would clearly redound to the benefit of employees. We conclude that, on balance, the benefit to employees outweighs the burden placed on the Agency. Consequently, we find that the proposal does not excessively interfere with management's rights and is an appropriate arrangement negotiable under section 7106(b)(3).

IV. Proposal 2

4. EPA shall provide to all bargaining unit employees secure areas in their immediate office areas for storing personal property.

A. Positions of the Parties

The Agency asserts that Proposal 2 requires the Agency to create secure areas adjacent to bargaining unit employees where no such practice now exists and, consequently, interferes with the Agency's right to determine its internal security practices. The Agency also asserts that Proposal 2 interferes with its rights to determine the technology, methods and means of performing work, assign work and direct employees. The Agency contends that Proposal 2 is neither a procedure negotiable under section 7106(b)(2) nor an appropriate arrangement negotiable under section 7106(b)(3).

The Union states that Proposal 2 is intended to provide employees with a means of securing personal property that is normally brought to work, for example, purses, wallets and lunches. The Union intends the phrase "secure areas" to include lockable desk drawers, cabinets, or lockers. The Union intends "[i]mmediate office area" to include the employee's own office and bay areas adjacent to employee offices. Union Response at 10.

The Union contends that based on the Authority's decision as to Proposal 4 in American Federation of Government Employees, AFL-CIO, Local 1770 and Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, N.C., 17 FLRA 752 (1985), Proposal 2, here, is negotiable.

B. Analysis and Conclusion

As discussed in conjunction with Proposal 1, the term "internal security practices" includes those policies and actions that are part of the Agency's plan to secure or safeguard its personnel, physical property, and operations against internal or external risks. See, for example, Fraternal Order of Police Lodge 1F (R.I.) Federal and Veterans Administration, Veterans Administration Medical Center, Providence, Rhode Island, 32 FLRA 944, 957 (1988). As explained below, based on the legislative history of the Statute, we do not construe "internal security practices" under section 7106(a) as extending to matters that relate solely to the protection of employees' personal property.

The Statute and its legislative history do not explain the precise scope that Congress intended for the management right to determine "internal security practices." We look, therefore, at what the legislative history reveals as to what Congress intended by the management rights section as a whole. The Report of the House Committee on Post Office and Civil Service on H.R. 11280, a bill that evolved into what is now the Statute, stated that the Committee's intention underlying section 7106 was "to preserve the essential prerogatives and flexibility Federal managers must have." Subcommittee on Postal Personnel and Modernization of the House Committee on Post Office and Civil Service, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 at 689-90 (Comm. Print No. 96-7) (Legislative History).

This sentiment is echoed in remarks made on the floor of the House regarding the "Udall substitute"--a compromise version of H.R. 11280 that formed the basis of the legislation enacted by Congress and signed into law. Specifically, Rep. Ford, a proponent of the "Udall substitute," described the management rights clause of the "Udall substitute" as intended to protect "genuine management prerogatives." Legislative History at 956. Rep. Clay, another supporter of the "Udall substitute," described the management rights clause as intended to protect "genuine management responsibility." Legislative History at 932.

As a whole, the Statute reflects a comprehensive effort by Congress to balance the interest of the Government in efficient operations with the interest of employees in decisions affecting them. See, for example, Overseas Education Association, Inc. v. FLRA, 876 F.2d 960, 961-62 (D.C. Cir. 1989). As part of this equation, Congress provided employees with the right to engage in collective bargaining with respect to conditions of employment. Another part of the equation, section 7106, removes from the duty to bargain management functions that Congress deemed essential to effective conduct of agency business. Id.

In view of the purpose of the Statute as a whole and section 7106 in particular, we conclude that the management rights contained in section 7106 are intended to exclude from the bargaining obligation those management prerogatives that are essential to the effective accomplishment of an agency's mission and functions. Here, the Agency makes no showing, and it is not apparent to us, that protection of employees' personal property on agency premises falls within the scope of managerial prerogatives. Management's interest in protecting employees' personal property is distinguishable from management's interest in protecting its own property, personnel or operations. Management's need to protect the latter is clearly related to preserving or facilitating its ability to conduct its mission and functions and to provide effective, efficient Government.

On the other hand, protecting employee's personal property is, at most, merely incidental to the accomplishment of the Agency's mission and functions but is principally related to the working conditions of employees. Compare National Treasury Employees Union v. FLRA, 793 F.2d 371, 375 (D.C. Cir. 1986) (in rejecting the reasoning underlying a finding that proposals concerning the rate of incentive pay conflicted with section 7106(a), the court noted that "it is difficult to imagine any agency prescriptions regarding terms and conditions of work for . . . employees that would remain bargainable, since [unless the agency is squandering its resources] they all have the same ultimate objective as assignment and direction, viz., increased production by those employees" [emphasis in original]).

Proposal 2 requires the Agency to provide secure areas for the storage of only employees' personal property. In view of this limited scope, and based on the reasoning set forth above, we find that Proposal 2 does not interfere with the Agency's right to determine its internal security practices.(2)

In support of the contention that Proposal 2 conflicts with the right to determine the technology, methods and means of performing work, the Agency asserts only that Proposal 2 interferes with its work "of safeguarding Agency property." Proposal 2, as noted above, solely addresses security for employees' personal property, and has nothing to do with safeguarding Agency property. Therefore, we reject the Agency's contention that the proposal conflicts with section 7106(b)(1).

The Agency provides no reasons that would support a conclusion that Proposal 2 relates to or interferes with the Agency's rights to direct employees and to assign work. Consequently, we reject these Agency assertions. In view of our finding that there is no showing that Proposal 2 concerns any management right, it is unnecessary to determine whether Proposal 2 constitutes a procedure under section 7106(b)(2) or an appropriate arrangement under section 7106(b)(3).

Based on the foregoing, we find that Proposal 2 is within the duty to bargain. See American Federation of Government Employees, AFL-CIO, Local 1770 and Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 17 FLRA 752 (1985) (Proposal 4).

V. Proposal 3

EPA shall provide advance copies of all Security Bulletins and Security Alerts to Union representatives prior to distribution to bargaining unit employees for the purpose of comment on the accuracy of the information contained in the publications. If the Union can prove the information is not accurate the Agency will modify the statements to make them accurate prior to distribution provided that the Union's review does not unduly delay the publication or impede the purpose for which the publication is intended.

A. Positions of the Parties

The Agency contends that Proposal 3 conflicts with management's rights to: determine internal security; determine the technology, methods and means of performing work; assign work; and direct employees. The Agency contends that Proposal 3 is neither a procedure that is negotiable under section 7106(b)(2) nor an appropriate arrangement that is negotiable under section 7106(b)(3).

The Union states that Proposal 3 is intended to ensure that employees receive accurate information about security-related incidents, especially the seriousness of criminal incidents. The Union contends that the Security Bulletins and Alerts are not part of the Agency's internal security practices. The Union asserts that Proposal 3 would not prevent the Agency from either implementing or changing its internal security practices. The Union argues that the Agency has failed to support its contention that Proposal 3 conflicts with the rights to determine the technology, methods and means of performing work, to direct employees, or to assign work.

B. Analysis and Conclusions

The Agency periodically issues Security Bulletins to make employees aware of services provided by the Agency's security personnel, remind them of basic security precautions, and keep them informed of security-related matters. The Security Alerts are issued to advise employees of specific incidents, such as assaults and thefts. Like the Bulletins, the Alerts offer reminders as to available protections and precautions.

We recognize that advising employees of the existence of dangers to their well-being so that they will exercise caution and/or avail themselves of existing protections can amount to a security practice. However, such action could also be viewed simply as notification to employees of matters concerning their conditions of employment. We have held, generally, that proposals that merely require an agency to notify employees of matters concerning their conditions of employment are negotiable as procedures. See, for example, National Federation of Federal Employees, Local 1263 and Defense Language Institute, Presidio of Monterey, California, 29 FLRA 61 (1987) (Proposal 4). Thus, such notification could, but does not necessarily, amount to an internal security practice.

Here, the Agency makes a bare assertion that the proposal interferes with its right to determine its internal security practices without establishing any link between the Security Bulletins and Security Alerts and its internal se