36:0075(8)NG - - NFFE Local 1655 and DOD, Military Affairs, Illinois NG, Springfield, IL - - 1990 FLRAdec NG - - v36 p75
[ v36 p75 ]
The decision of the Authority follows:
36 FLRA No. 8
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. DEPARTMENT OF DEFENSE
DEPARTMENT OF MILITARY AFFAIRS
ILLINOIS NATIONAL GUARD
DECISION AND ORDER ON NEGOTIABILITY ISSUE
June 19, 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 proposal that would preclude the Agency from searching Union property, such as file cabinets and desks, located on the Agency's premises unless the Agency first obtained a proper search warrant for the search.
We conclude that the proposal is nonnegotiable because it would directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
The Employer will not search any property of the Union, including but not limited to file cabinets, desks, brief cases, etc., without obtaining a proper search warrant for the search. The Union will have a representative present. (Only the underlined sentence is in dispute.)
III. Positions of the Parties
A. Agency's Position
The Agency contends that the proposal violates its right under section 7106(a)(1) of the Statute to determine its internal security practices. According to the Agency, Government-owned equipment, including power and hand tools, firearms and other military equipment, and portable office equipment, is present on the Agency's facilities. The Agency states that "[d]esks and/or filing cabinets located in an area set aside for the use of the labor organization could provide a ready storage site for a dishonest employee's use. Therefore, when necessary, the Agency conducts searches of its property, including that government owned property being used by the union[,] to insure the security of Government-owned equipment and facilities, as well as in the course of investigation of loss or theft of [G]overnment property." Statement of Position at 2.
The Agency asserts that, under the proposal, it "would be totally unable to conduct a search without a warrant" and therefore "would have no right to independently determine the need to conduct a search." Id. The Agency contends that the proposal establishes "a precondition on the right to conduct . . . routine searches which would be almost impossible to meet." Id.
The Agency also asserts that nothing in the record indicates that the proposal is intended by the Union to be an appropriate arrangement for employees adversely affected by the exercise of management's rights within the meaning of section 7106(b)(3) of the Statute. According to the Agency, "[e]ven if the record did establish such an intent for the proposal," the proposal would not qualify as an appropriate arrangement because it excessively interferes with the Agency's right under section 7106(a)(1) to determine its internal security practices. Id. at 3.
The Agency also contends that the proposal does not concern conditions of employment of bargaining unit employees. The Agency argues that the focus of the proposal is not bargaining unit employees, but rather the property of the Union. According to the Agency, searches of Union property do not affect the working conditions of employees.
B. Union's Position
The Union contends that the proposal cannot interfere with the Agency's internal security practices because the Agency does not have a published internal security plan. The Union also argues that the proposal concerns the conditions of employment of bargaining unit employees because it concerns the property of the Union, which has been chosen by the employees to represent them in collective bargaining with respect to conditions of employment. According to the Union, the individuals using the property in question are bargaining unit employees.
A. The Proposal Concerns Conditions of Employment of Bargaining Unit Employees
The Authority has consistently held that matters relating to the representation of employees by their exclusive representative constitute conditions of employment under the Statute. For example, American Federation of Government Employees, AFL-CIO, National Council of SSA Field Operations Locals and Social Security Administration, 25 FLRA 622, 625 (1987), aff'd order as to other matters sub nom. American Federation of Government Employees, AFL-CIO, National Council of SSA Field Operations Locals v. FLRA, No. 87-1155 (D.C. Cir. Jan. 25, 1988). Such matters include union access to agency facilities to be used by the union in carrying out its representational duties. Id. at 624-25.
Although it is unclear whether the file cabinets and desks to be searched are owned by the Agency or the Union, it is undisputed that they are located on the Agency's premises. In this case, the proposal concerns the conditions under which the Agency can examine property located on its premises and used by the Union in connection with its representational duties. Because matters relating to the property situated within the Agency's premises to be used by the Union in its representational function are matters relating to the conditions of employment of unit employees, we conclude that the proposal, which prescribes the conditions governing searches of that property, also relates to the conditions of employment of unit employees.
B. The Proposal Directly Interferes with the Agency's Right to Determine Its Internal Security Practices
We conclude that the proposal is nonnegotiable because it directly interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.
We note as an initial matter that there is no constitutional requirement for a search warrant prior to work-related searches conducted by governmental employers. O'Connor v. Ortega, 480 U.S. 709, 722 (1987). The constitutional standard for work-related searches by governmental employers is "reasonableness under all the circumstances." Id. at 725-26. Because there is no legal requirement for a warrant in the circumstances covered by the proposal, the issue is whether a contractual requirement for a search warrant as a prerequisite to an Agency's search of the Union's property on the Agency's premises is inconsistent with the Agency's right to determine its internal security practices.
According to the Agency, employees at the Agency's facilities have access to tools, firearms, office equipment, and other valuable materials. The Agency contends that, in the event that someone attempted to remove any of these items from the workplace, Union-controlled cabinets or desks are among the places that could be used to store them. The Agency contends, and the Union does not dispute, that the Union property covered by the proposal is located at the Agency's workplace. The Agency has determined, therefore, that the ability to search its premises, including Union-controlled property in the workplace, is necessary to protect the Agency's property from theft. Accordingly, we find that the Agency has established a link between its policy of searching those workplace areas where stolen equipment could be stored and its concerns as to the security of its property. We emphasize that our finding is limited: the Agency has established a link between its security concerns and its policy of searching Agency property. We are not finding, and do not suggest, that the Agency has any greater need to search property used by the Union than it has to search other property located on the Agency's premises.
Because the Agency has demonstrated a connection between its policy concerning searches in the workplace and its concerns as to the security of its property, we consider next whether the proposal directly interferes with the Agency's determination of the policies which will govern its searches in the workplace. See American Federation of Government Employees, AFL-CIO, Local 1411 and Department of the Army, Fort Benjamin Harrison, 32 FLRA 990, 993 (1988); compare National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 713-16 (1990) (measures designed to protect employees' personal property, rather than the agency's property, do not concern the agency's internal security practices).
An agency's right under section 7106(a)(1) of the Statute to determine its internal security practices includes the right to determine the actions it will take to secure or safeguard its property from internal or external risks. Fraternal Order of Police, Lodge 1F (R.I.) Federal and Veterans Administration, Veterans Administration Medical Center, Providence, Rhode Island, 32 FLRA 944, 957 (1988). Proposals which would restrict an agency's ability to conduct searches intended to protect agency property from theft or misuse directly interfere with the agency's right to determine its internal security practices. National Association of Government Employees, SEIU, AFL-CIO and Department of the Air Force, Scott Air Force Base, Illinois, 16 FLRA 361 (1984). In particular, a proposal which would preclude an agency from searching employees' clothing or bodies without a search warrant, or unless the search was incident to an arrest, would directly interfere with the agency's internal security practices. National Treasury Employees Union, Chapter 21 and Department of the Treasury, Bureau of Engraving and Printing, 18 FLRA 405 (1985) (Bureau of Engraving and Printing).
We find, consistent with Bureau of Engraving and Printing, that by conditioning a search of Union property in the workplace on the Agency's ability to obtain a search warrant, the proposal impermissibly restricts the Agency's right to conduct searches in the workplace and directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. See National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, National Guard Bureau, Department of Military Affairs, Illinois Air National Guard, 35 FLRA 740 (1990) (Proposal 5, which would condition mass searches of cars, trucks, or other personal property of employees on the prior approval of the union president, directly interferes with the agency's right to determine its internal security practices under section 7106(a)(1) of the Statute). The proposal would preclude such a search without a warrant in circumstances in which it is constitutionally permissible to conduct the search without a warrant. Compare American Federation of Government Employees, AFL-CIO, Local 1759 and Department of Defense, Department of the Army, Headquarters, Fort McPherson, Georgia, 29 FLRA 261 (1988) (Proposal 2, providing that searches of personal belongings or employee lockers may be permitted only on the basis of reasonable suspicion, based upon specific objective facts and reasonable inferences drawn from those facts, is negotiable).
Finally, we do not consider whether the proposal in this case constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. Although the Union had not raised the issue in its petition for review, the Agency argued in its statement of position that the proposal is not an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute because it excessively interferes with the Agency's right to determine its internal security practices. See generally National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (in determining whether a proposal constitutes an appropriate arrangement, the Authority will determine whether it excessively interferes with management's rights by balancing the competing needs of employees and management). In its response to the Agency's statement of position, the Union asserts, without elaboration, that "[t]he proposal does not violate and excessively interfere with the exercise of the [Agency's right] to determine its internal security practices" (Union's Response at 2, emphasis added). The Union does not refer to section 7106(b)(3) of the Statute and does not address the balancing test required by Kansas Army National Guard.
The Union's mere use of the words "excessively interfere" is not sufficient to raise an argument that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. The Authority has long held that when claiming that a proposal constitutes an appropriate arrangement under section 7106(b)(3)
the union should identify the management right or rights claimed to produce the alleged adverse effects, the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse. In other words, a union must articulate how employees will be detrimentally affected by management's actions and how the matter proposed for bargaining is intended to address or compensate for the actual or anticipated adverse effects of the exercise of the management right or rights.
Kansas Army National Guard, 21 FLRA at 31.
Here, the Union has not met the requirements set forth in Kansas Army National Guard. Therefore, we will not determine whether the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. See National Treasury Employees Union and Department of Health and Human Services, Office of Hearings and Appeals, 34 FLRA 1022, 1027-28 (1990).
Even if we were to assume, for the sake of argument, that the Union raised the applicability of section 7106(b)(3), the Union has provided no evidence in that regard which would enable us to assess the effect of the proposal on management's rights or the benefits to employees which might result from that provision. See Kansas Army National Guard, 21 FLRA at 31-32. Any conclusions we might reach in this connection would be purely conjectural. See American Federation of Government Employees, AFL-CIO, Department of Education Council of AFGE Locals and Department of Education, 34 FLRA 1078, 1085-86 (1990) (union failed to create a record on which the Authority could determine whether a proposal constituted an appropriate arrangement under section 7106(b)(3)). Compare The Washington Plate Printers Union, Local No. 2, I.P.D.E.U. and U.S. Department of the Treasury, Bureau of Engraving and Printing, 31 FLRA 1250, 1256 (1988) (the union argued, and the Authority agreed, that an agreement provision constituted an enforceable a