35:1193(135)NG - - AFGE Local 1164 and HHS, SSA, Lynn, MA - - 1990 FLRAdec NG - - v35 p1193



[ v35 p1193 ]
35:1193(135)NG
The decision of the Authority follows:


35 FLRA No. 135

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

Local 1164

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

LYNN, MASSACHUSETTS

(Agency)

0-NG-1742

DECISION AND ORDER ON NEGOTIABILITY ISSUE

May 31, 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 appeal concerns the negotiability of a provision which establishes a procedure to follow when there are indications that an employee may be misusing Agency telephones. The provision was disapproved by the Department of Health and Human Services, Social Security Administration pursuant to section 7114(c) of the Statute. For the following reasons, we find that the provision is negotiable.

II. Provision

If there are indications that an employee may be misusing SSA telephones, Management will follow the provisions under Article 23 of the Contract.

A-Upon request, the employee shall be provided with a photocopy of the computer print-out which documents the alleged misuse. This shall be done, on request, for each instance of alleged abuse.

B-If the Agency suspects abuse, and therefore needs to determine the identity of a called number, Management shall identify the number through the following methods in descending order.

1-Ask the employee involved or other employees.

2-Inquire through the telephone company.

3-If the number has to be called, it shall be done as a last resort, and all effort shall be expended to avoid embarrassment to the employee involved.

(Only subsection B is in dispute.)

III. Background

The provision resulted from negotiations over the Agency's installation of a new telephone system. According to uncontroverted statements by the Union (Petition at 2):

The old . . . system consisted of standard telephones with no monitoring capabilities. If an employee made excessive long distance telephone calls, it would show up on the monthly telephone bill. Oftentimes, management would call a telephone number that appeared too often on the office billing, in order to determine if a number was called in the course of official agency business or was of a personal nature.

The new . . . system would automatically provide [m]anagement with a daily computer print-out of all outgoing calls (both long distance and local), identified by the telephone the call originated from, the party called (by number), and the length of the call. Since this new system would record both local and long distance calls, it would be more common for frequently called numbers to appear on the daily statement rather than the monthly bill. Potentially, [m]anagement would be calling more numbers to determine potential abuse.

IV. Positions of the Parties

A. Agency

The Agency maintains that the provision determines the manner in which it will investigate suspected employee misuse of Agency telephones and, therefore, the provision limits "[m]anagement's use of investigatory techniques." Statement of Position at 2. The Agency contends that the provision would conflict with management's rights to determine its internal security practices under section 7106(a)(1) of the Statute and to discipline employees under section 7106(a)(2)(A) of the Statute.

The Agency argues that it is seeking to prevent misuse of Government telephones by employees. The Agency maintains that the provision would interfere with its effort by requiring the Agency to follow a particular procedure when investigating suspected misuse of its telephones. The Agency contends that this provision is similar to Proposal 2, which was found nonnegotiable in National Association of Government Employees, SEIU, AFL-CIO and Department of the Air Force, Scott Air Force Base, Illinois, 16 FLRA 361 (1984) (Scott Air Force Base). The Agency argues that in Scott Air Force Base, the Authority found that a proposal which would prohibit the agency from conducting unauthorized searches conflicted with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency argues that, like the proposal in Scott Air Force Base, the provision in this case limits its use of investigative techniques and, therefore, conflicts with its right to determine its internal security practices.

The Agency also contends that the provision conflicts with its right to discipline under section 7106(a)(2)(A) of the Statute. The Agency maintains that the right to discipline includes the right to investigate in order to determine whether discipline is warranted. The Agency asserts that the provision requires it to follow a sequence of steps in investigating suspected misuse of the telephone and, thereby, limits the Agency's use of investigative techniques. The Agency argues that because the conduct it is investigating would be subject to discipline, the provision directly interferes with its right to discipline.

B. Union

The Union maintains that the provision establishes procedures under section 7106(b)(2) of the Statute by which the Agency implements its policies and objectives concerning internal security. The Union also asserts that the Agency has failed to show a direct link between the requirements of the provision and the security of the Agency's operations. The Union argues that the provision would not prevent the Agency from policing, investigating, or acting on the misuse or potential misuse of its telephones. The Union contends that the provision in this case is not "as severely limiting" as the provision in Scott Air Force Base. Response at 1.

The Union also contends that the provision constitutes an appropriate arrangement under section 7106(b)(3) of the Statute for employees adversely affected by the Agency's use of its telephone monitoring system. The Union argues that "[t]he burden on the employee of this aggressive and most intrusive new telephonic technology which automatically electronically monitors and records notation of all outgoing telephone calls vastly outweighs any slight possible infringement of Agency internal security procedures." Response at 2 (Emphasis in original). The Union maintains that the provision was not intended to shelter employees who abuse Government telephone lines. The Union argues that the provision is an appropriate arrangement because it does not "excessively limit" the exercise of management's right. Id.

The Union also contends that the provision does not conflict with management's right to discipline employees. The Union contends that the provision "still allows [m]anagement to investigate to determine if disciplinary action and/or further investigation is in fact needed." Id. at 3. Therefore, the Union asserts that the provision is consistent with the Statute.

V. Analysis

A. The Provision does not Directly Interfere With Management's Right to Determine its Internal Security Practices Under Section 7106(a)(1) of the Statute

The provision would require the Agency to follow a sequence of steps when investigating an employee's suspected misuse of the telephone. When determining if a call involves Agency business, the provision requires that the Agency first question the suspected employee or other employees and, second, inquire through the telephone company about a specific number before calling that number. The provision establishes that the number will be called as a last resort in order to avoid embarrassment to the employee.

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 American Federation of Government Employees, Council 214 and Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 34 FLRA 977, 983 (1990) (Wright-Patterson Air Force Base). An agency's right to determine its internal security practices also includes the right to determine the investigative techniques the agency will use to achieve its internal security objectives. See American Federation of Government Employees, AFL-CIO, Local 1808 and Department of the Army, Sierra Army Depot, 30 FLRA 1236, 1239-40 (1988). Where an agency shows a link or reasonable connection between its goal of safeguarding personnel or property and its practice or investigative technique designed to implement that goal, a proposal which directly interferes with or negates the practice or technique conflicts with the agency's right under section 7106(a)(1). See Wright-Patterson Air Force Base, 34 FLRA at 983.

The Agency maintains that the investigation of suspected misuse of the telephone system is necessary to achieve its security objective of uncovering and thereby preventing misuse of the Government telephone system. We find there is a reasonable connection between the Agency's investigation of suspected misuse of the telephone system and its goal of safeguarding its property. Accordingly, if the provision directly interferes with the Agency's investigation of suspected misuse of the telephone system, the provision is not negotiable.

We reject the Agency's argument that the provision would directly interfere with its ability to investigate suspected misuse of the telephone system. As noted above, the provision merely sets forth a sequence of steps the Agency would take during its investigation of any suspected misuse. The Agency is not prevented from taking the second and third steps if it determines that those steps are necessary. That is, the provision does not prevent the Agency from inquiring through the telephone company and calling the telephone number in question. In addition, the Agency retains the ability to determine how much time, if any, should elapse between steps. Nothing in the provision would prevent the Agency from taking all of the steps within a short span of time to avoid any possible hampering of an investigation. In order to prevent any possible collusion, the Agency could question the employee, inquire at the telephone company, and call the number virtually simultaneously.

We find that the provision merely sets forth a procedure by which management would investigate suspected misuse of the telephone system and, thereby, achieve its security objective of uncovering and preventing misuse of the telephone system. Because the provision does not limit the Agency's ability to investigate suspected misuse of the telephone, we conclude that it does not directly interfere with the Agency's right to determine its internal security practices. Accordingly, the provision constitutes a negotiable procedure under section 7106(b)(2) of the Statute which the Agency will observe in exercising its management right to determine its internal security practices. See American Federation of Government Employees, AFL-CIO, Local 1759 and Department of Defense, Department of the Army, Headquarters, Fort McPherson, Georgia, 29 FLRA 261, 265-66 (1988) (Proposal 3) (proposal which provided that an employee's locker would not be searched unless the employee were present, except in compelling circumstances, found to be a negotiable procedure which the agency would observe in exercising its right to determine its internal security).

We reject the Agency's contention that the provision has the same effect as Proposal 2 in Scott Air Force Base, 16 FLRA 361, which the Authority found nonnegotiable because it prohibited unannounced searches of employees and limited searches of hand-carried items to situations when the agency had reasonable cause to believe the employee had stolen an item. The Authority found that the proposal interfered with the agency's right to determine its internal security practices because it limited the agency's ability to conduct unannounced searches in furtherance of its plan to safeguard its property. In contrast, nothing in the provision in this case would prevent or limit the use of a specific investigative tool or procedure. As discussed above, the provision merely sets forth a sequence of steps the Agency would follow in investigating suspected misuse of the telephones.

B. The Provision does not Directly Interfere with Management's Right to Discipline Under Section 7106(a)(2)(A) of the Statute

The Agency maintains that the provision would limit the use of investigative techniques it could use to uncover conduct which would be subject to disciplinary action. Therefore, the Agency argues that the provision would interfere with its right to discipline under section 7106(a)(2)(A) of the Statute. For the following reasons, we reject the Agency's contention.

Management's right to discipline includes the right to conduct investigations to determine whether discipline is justified. American Federation of Government Employees, AFL-CIO, Local 2052 and Department of Justice, Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia, 30 FLRA 837, 843 (1987). Proposals which limit an agency's use of an appropriate investigative technique to uncover conduct subject to disciplinary actions directly interfere with management's right to discipline. Id. at 843-44. However, as discussed earlier, the provision in this case would not limit the Agency's use of a specific investigative technique. This provision requires only that the investigative techniques be used in a particular sequence. Nothing in the provision would prevent the Agency from discovering misuse of the telephone system or from imposing discipline for that conduct. Therefore, we find that the provision does not directly interfere with the Agency's right to discipline.

VI. Conclusion

We find that the provision is within the Agency's duty to bargain because it does not directly interfere with management's rights to determine its internal security practices and discipline employees. Because the provision does not directly interfere with management's rights, we need not address the Union's contention that the provision constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

VII. Order

The Agency shall rescind its disapproval of, and give effect to, the provision.(*)




FOOTNOTES:
(If blank, the decisio