42:1327(91)NG - - AFGE, National VA Council and VA, Washington, DC - - 1991 FLRAdec NG - - v42 p1327
[ v42 p1327 ]
The decision of the Authority follows:
42 FLRA No. 91
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) and concerns the negotiability of one proposal. The proposal seeks to preserve the "status quo" by allowing employees access to the electronic mail system to receive a reasonable number of personal messages.
We conclude that the proposal is not sufficiently specific and delimited for us to make a determination with regard to its negotiability. Accordingly, we will dismiss the petition for review.
The Union submitted the proposal in this case in response to the Agency's notification to the Union of its intent to distribute to employees in the office of the General Counsel a policy statement regarding the use by employees of the Federal computer system, including the electronic mail system. After the Union filed a petition for review of the Agency's allegation of nonnegotiability, the Agency distributed to employees its policy statement (Agency Attachment E-4 to Statement of Position) and an accompanying statement entitled Notice to Employees With Computer Access, for employees to read and sign indicating that they understood the Agency's policy (Agency Attachments E-5 and E-6 to Statement of Position).
The Agency policy statement and accompanying statement stated, as relevant here, that: (1) employees are not "authorized to use the electronic mail feature either for personal messages not related to the performance of [their] official duties or in lieu of personal telephone calls[,]" (2) The Agency "will monitor the amount, types and contents of messages sent by individuals on electronic mail," and (3) employees may be subject to disciplinary action or prosecuted if they use "the electronic mail feature" for any purposes other than performance of their "official duties." Agency Attachments E-5 and E-6 to Statement of Position. In addition, the notice informs employees that they may not disclose or share security codes for any reason and that "improper access to, or unauthorized modification or disclosure of data" could subject them to criminal penalties or disciplinary or adverse actions. Agency Attachment E-6 to Statement of Position.
III. Preliminary Matter
The Agency moves to strike the Union's reply brief on the grounds that the Union failed to serve a copy of its reply brief on the Agency's representative of record in accordance with section 2424.7(c) of the Authority's Rules and Regulations.
The Certificate of Service attached to the Union's reply brief reveals that the reply brief was served on two officials of the Agency, the Agency's Administrator and the Director, Labor-Management Relations Service. Under section 2424.7(c) of the Authority's Rules and Regulations, a copy of the Union's reply brief must be served on the agency head and on the agency's representative of record in the proceeding. The record does not establish that the Agency had named a particular official of the Agency as representative of record for service of documents relating to the Union's appeal. In the absence of an explicit restriction as to which Agency representative could be served with the Union's reply brief, we conclude that service of the Union's reply brief on the Director, Labor-Management Relations Service constituted service on the Agency's representative of record. Compare, for example, American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 148 and Department of Justice, U.S. Bureau of Prisons, Allenwood Federal Prison Camp, 31 FLRA 12 (1988) (in the absence of an explicit restriction on the union official who could be served with an allegation of nonnegotiability, service on the chief steward constituted service on the exclusive representative). Accordingly, we deny the Agency's motion to strike the Union's reply brief.
The National VA Council proposes a "Status Quo" concerning the Office Policy in the Office of General Counsel.
A. Positions of the Parties
The Agency disputes the Union's claim that the Agency's policy concerning the electronic mail system has been to allow employees to receive a reasonable number of calls at work. Rather, the Agency asserts that its policy has been to authorize employee access to the electronic mail system for official Government business purposes only and not for personal purposes and that such policy reflects the status quo.
The Agency contends that the proposal is nonnegotiable because it would allow employees to have unlimited access to the electronic mail system for personal purposes and, therefore, interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. In support, the Agency relies on, among other cases, American Federation of Government Employees, AFL-CIO, National Archives and Record Administration Council of AFGE Locals (Council 1260) and National Archives and Record Administration, 31 FLRA 878 (1988) (National Archives and Record Administration) and National Federation of Federal Employees, Local 1827 and Defense Mapping Agency, Aerospace Center, St. Louis Air Force Station, Missouri, 16 FLRA 791 (1984) (Defense Mapping Agency, Aerospace Center). Specifically, the Agency contends that in Defense Mapping Agency, Aerospace Center the Authority upheld an agency's right to determine its internal security practices by requiring employees to sign an agreement establishing security measures.
The Agency states that it has chosen as a security measure to limit employee access to its electronic mail system for official purposes because it is "an effective impediment against tampering with or obtaining unauthorized access to sensitive and/or confidential data contained within" the Agency. Agency Statement of Position at 6. The Agency asserts that the susceptibility of the electronic mail system "to tampering increases with the frequency of access, and that limiting access to those situations that serve a purely governmental, rather than personal purpose, in effect furthers the goal of reducing or eliminating tampering with data that the system contains." Id.
The Union states that the proposal is intended to "continue the previous policy concerning the electronic mail system." Petition for Review at 1. The Union also states that the dispute involves "whether or not the employer must negotiate on continuing the practice of allowing reasonable, limited use of government telephones by employees for personal calls." Union Reply Brief at 2. The Union disputes the Agency's contention that the proposal would allow employees to have unlimited access to the electronic mail system for personal purposes. Rather, the Union asserts that the "proposal is directed to employees' use of the telephone system, not to the full use of the electronic mail system . . . ." Id. Thus, the Union argues that the intent of the proposal is to continue the Agency's previous telephone policy, which allowed employees to receive a reasonable number of personal calls at work. The Union states that the proposal deals only with employee usage of telephones for personal use, that such use was never unlimited and was monitored by supervisors to guard against unreasonable use, and that limited use of government telephones is authorized by applicable regulations. Id. at 2-3. The Union also contends that the Authority has found that proposals concerning the use of telephones for personal matters are within the obligation to bargain.
The Union argues that the electronic mail system does not constitute "'access'" to a computer system "within the meaning of applicable laws and regulations." Petition for Review at 1. The Union argues that the "so-called 'data' on an electronic mail system is not data in the sense of information stored on a computerized data base[.]" Id. The Union further cites to the definition of terms set forth in the Federal Personnel Manual (FPM) pertaining to "accessing an actual computer system" and asserts "doubt that the agency's new telephone 'voice mail' system of leaving informal messages meets the criteria of 'operating' or 'accessing' a computer system . . . ." Union Reply Brief at 4-5. The Union denies that the proposal contravenes any Agency security measures and states that it "is merely a telephone convenience." Id. at 7.
B. Analysis and Conclusions
We conclude that the proposal is not sufficiently specific and delimited to enable us to determine whether it is negotiable. Moreover, the Union does not clarify the scope of the proposal in its statements of position.
The proposal states merely that the Union "proposes a 'Status Quo' concerning the Office Policy in the Office of General Counsel." There is no explanation in the proposal itself as to the meaning of "status quo" or the "office policy" to which it refers. In its petition for review and subsequent brief, the Union provides inconsistent statements as to the meaning of these critical terms. Thus, the Union states that the policy it wishes to retain concerns the employees' use of the electronic mail system. However, the argument the Union uses to support this statement relates solely to the use of the Agency's telephones to receive personal messages. The Agency, on the other hand, asserts that the employees have never been permitted to use the electronic mail system to receive personal messages and that the current policy regarding use of that system "does reflect the 'status quo[.]'" Agency Statement of Position at 2 (emphasis in original).
We find nothing in the Union's statements to clarify this ambiguity. We do not know whether the Union is referring to the status quo with regard to the electronic mail system, as it asserts in its petition for review, or whether the status quo relates to "the practice of allowing reasonable, limited use of government telephones by employees for personal calls[,]" as it states in its reply brief at page 2, or whether the proposal in fact is intended to refer to both telephonic and electronic messages. If the latter is the case, we cannot determine the extent to which the electronic mail system would function under the proposal as a substitute for the prior telephonic means of receiving personal messages. For example, we cannot ascertain what percentage of the messages previously received by telephone the Union expects would be transferred by electronic means. Moreover, the Union does not explain how the electronic mail system operates; specifically, it has provided no information as to who has access to the system and whether usage of the system for personal messages would increase the number of persons with such access. 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. National Association of Government Employees, Local R1-134 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 589, 596 (1990).
Without a more substantial record, we cannot determine the meaning of the proposal in dispute. A petition for review that does not present a proposal sufficiently specific and delimited to enable the Authority to make a negotiability determination does not meet the conditions for review set forth in 5 U.S.C. § 7117(c) and 5 C.F.R. § 2424.1. American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068, 1093-94 (1990) (Member Talkin dissenting as to other matters), decision on reconsideration, 39 FLRA 1241 (1991), petition for review filed as to other matters sub nom. United States Department of Education v. FLRA, No. 91-1219 (D.C. Cir. May 10, 1991). Consequently, we will