45:0254(22)NG - - NTEU, Chapter 82 and Treasury, IRS, Martinsburg Computing Center, Martinsburg, WV - - 1992 FLRAdec NG - - v45 p254



[ v45 p254 ]
45:0254(22)NG
The decision of the Authority follows:


45 FLRA No. 22

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 82

(Union)

and

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

MARTINSBURG COMPUTING CENTER

MARTINSBURG, WEST VIRGINIA

(Agency)

0-NG-2004

DECISION AND ORDER ON NEGOTIABILITY ISSUES

June 18, 1992

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 three proposals that would allow employees to eat and drink in the Agency's computer rooms and tape library.

Proposal 1 would require the Agency to establish an area within each computer room and the tape library where employees would be permitted to consume cold "finger foods" and beverages in "spillproof" containers. Proposal 2 would allow employees in the computer rooms and tape library to drink beverages in "spillproof" containers while at their work stations. Proposal 3 would allow employees to transport food and beverages into the computer rooms and tape library if the items were in sealed containers.

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

II. The Proposals

Proposal 1

The Agency shall establish at least one area within each Computer Room and within the Tape Library where employees will have access to food and drink. These areas shall be established in a location away from computer equipment, tapes and cartridges, and shall be clearly marked. Each such area shall be equipped with a small table and carpeting or some other type of absorbent flooring material. Within these areas, employees shall be permitted to have and consume cold "finger-food," and beverages in "spillproof" containers.

Proposal 2

In addition to the provisions of #1, above, employees shall also be permitted to have and drink beverages in "spillproof" containers at their workstations/consoles, as long as they do not take the beverage in proximity to other computer equipment or to computer tapes or cartridges.

Proposal 3

In transporting food and beverages within the Computer Rooms and Tape Library to the areas under #1 and #2, above, in which their consumption is permitted, all food and beverage must be kept in a sealed container or package and kept away from any computer equipment, tapes or cartridges.

III. Positions of the Parties

A. The Agency

The Agency contends that the proposals directly interfere with management's rights to determine its internal security practices and the technology, methods, and means of performing work under sections 7106(a)(1) and 7106(b)(1) of the Statute. The Agency asserts that the prohibition of food and drink in the computer rooms and tape library is reasonably related to its objective of protecting the mainframe computer and computer consoles, magnetic tape, disk drives, reels, and cartridges from damage or destruction and that this objective is part of its internal security practices. The Agency also asserts that the proper functioning of the computer equipment is vital to the Agency's mission as the central repository of taxpayer data for the entire nation and, therefore, is related to the technology, methods, and means of performing work. By allowing employees to eat and drink in the computer rooms and tape library, the Agency argues that the proposals directly interfere with the Agency's exercise of its reserved rights.

The Agency claims that "[t]he proper functioning of the computer equipment . . . is so vital to the Agency's mission that management would require an absolute guarantee, which the Union cannot provide, that no damage caused by spillage could occur." Statement of Position at 13. The Agency offers two hypothetical examples of accidents involving beverages that could cause damage to the Agency's computer equipment. First, the Agency describes a situation where an employee, carrying a large coffee urn of water to the designated eating and drinking area of a computer room, trips and spills the liquid, causing a short in the electrical wiring underneath the floor that results in a breakdown of the entire computer system. In the second example, the Agency describes an employee who drinks from a "spillproof" container and chokes, spilling liquid from his or her mouth onto the tape reels by his or her work station and destroying the data on those tapes. The Agency claims that these examples demonstrate that the Union's proposals do not sufficiently safeguard against damage to the Agency's computer equipment.

The Agency further contends that the proposals do not constitute arrangements within the meaning of section 7106(b)(3) of the Statute because the employees are not adversely affected by the exercise of management's rights. The Agency states that the computer room and tape library employees are permitted liberal breaks during their shifts and have access to a full-service cafeteria and snack room, and are in close proximity to vending machines and a microwave oven. The Agency argues that these employees are not adversely affected by the policy of prohibiting the consumption of food and beverages merely because other employees may have food and beverages at their work stations.

The Agency further argues, however, that if the Authority were to find that employees are adversely affected by the prohibition of food and beverages in the computer rooms and tape library, the proposals are not appropriate arrangements under section 7106(b)(3) because they excessively interfere with management's rights. Applying the balancing test established by the Authority in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG), the Agency argues that the need to protect its computer equipment outweighs the employees' interest in consuming food and beverages at their work stations. In support of its argument, the Agency relies on Voice of America and National Federation of Federal Employees, Local 1418, 41 FLRA 1068 (1991) (Voice of America), in which the Authority determined that a proposal requiring the agency to supply employees with commuter mugs to enable them to have beverages at their work stations was nonnegotiable because it excessively interfered with management's rights under sections 7106(a)(1) and 7106(b)(1) of the Statute. The Agency argues that the Authority's conclusion that the benefit to employees of allowing them to drink in the studios did not outweigh the negative effect on management's right to protect its electronic equipment, is equally applicable to this case.

B. The Union

The Union argues that the proposals do not directly interfere with the Agency's right to determine its internal security practices or to determine the technology, methods, and means of performing work. The Union acknowledges that the Agency's prohibition against the consumption of food and drink meets the minimum requirement of being rationally related to the Agency's objective of protecting its computer equipment. However, the Union claims that the proposals do not interfere with the protection of the computer equipment. Instead, the Union asserts that the proposals offer safeguards to ensure that the equipment and data will not be damaged.

Specifically, the Union claims that Proposal 1 safeguards the computer equipment by establishing separate areas within each computer room and tape library where employees may consume food and beverages. The Union also claims that Proposal 1 limits the type of food that unit employees can consume, requires unit employees to keep beverages in "spillproof" containers, and provides for the Agency to install absorbent flooring in these areas. The Union contends that Proposal 2 was intended to place employees in the computer rooms and tape library on an equal footing with other Agency employees who are permitted to eat and drink at their work stations. The Union asserts that under Proposal 2 the Agency's interest in protecting its computer equipment is addressed by requiring computer room and tape library employees to use spillproof containers when consuming beverages at their individual work stations. Under Proposal 3, the Union states that food and beverages must be kept in sealed containers and away from all computer equipment when being transported within the computer rooms and tape library. The Union claims that these measures will ensure that the computer equipment will not be damaged by allowing employees to have and consume food and beverages in the computer rooms and tape library. The Union further claims that the hypothetical examples described by the Agency in its statement of position are implausible because of the safeguards contained in the proposals.

The Union also argues, alternatively, that the proposals constitute appropriate arrangements for employees adversely affected by the exercise of management's rights within the meaning of section 7106(b)(3) of the Statute. The Union contends that the proposals are intended to ameliorate the adverse effects on employees created by the Agency's blanket prohibition on eating and drinking in the computer rooms and tape library.

The Union claims that the computer room and tape library employees are disadvantaged because of the limited number of scheduled breaks and the limited amount of time allotted for those breaks. The Union states that these employees work straight 8-hour shifts and that they have only two 15-minute breaks, rather than a standard half-hour lunch break. The Union claims that the Agency's break policy is not as flexible as the Agency claims. The Union further explains that it is important for employees to remain close to their work stations in order to keep the mainframe computer operational and that if an employee needs to leave the work station while processing an assignment, another employee must cover the position. The Union claims that employees do not have an opportunity to go to the cafeteria or the snack room to get a cup of coffee or a soda, drink it and return to work other than during one of their 15-minute breaks.

The Union argues that under the Authority's balancing test, the proposals do not excessively interfere with management's rights. Rather, the Union claims that the proposals would provide the Agency with a benefit by minimizing the need for unofficial and unscheduled breaks insofar as the employees would not have to leave their work stations to get a snack or a drink. The Union claims that the benefits to the Agency more than offset any minimal burden imposed in monitoring employee compliance with the proposals. The Union also asserts that the Agency is overstating the risk to its computer equipment. According to the Union, the Agency is concerned about the ramifications of an accident rather than the probability of an accident actually occurring. The Union argues that the safeguards contained in the proposals will eliminate the risk of an accident.

Finally, the Union argues that the proposal in Voice of America is distinguishable from the proposals in the instant case. The Union asserts that the "spillproof" containers required by the proposals in this case offer more protection than the use of commuter mugs required by the proposal in Voice of America. The Union also claims that the proposals here provide the additional safeguard of specifically prohibiting employees from bringing food and beverages in proximity to the mainframe computer or the tape reels and cartridges.

IV. Analysis and Conclusions

A. The Proposals Directly Interfere with Section 7106(a)(1) of the Statute

We find that the proposals are nonnegotiable because they directly and excessively interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.

An agency's right to determine its internal security practices under section 7106(a)(1) 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. National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, Washington, D.C., 39 FLRA 291, 294 (1991). Where an agency demonstrates that there is a reasonable link between its goal of protecting its property and a policy designed to implement that goal, a proposal that negates the agency's policy directly interferes with the agency's right to determine its internal security practices. National Federation of Federal Employees, Local 2058 and U.S. Department of the Army, Aberdeen Proving Ground Support Activity, Aberdeen Proving Ground, Maryland, 38 FLRA 1389, 1402 (1991) (Member Talkin concurring). In determining the negotiability of a proposal that arguably interferes with an agency's right to determine its internal security practices, the Authority will not inquire into the extent of the measures employed to achieve the objective as long as they reasonably relate to the purpose for which the particular plan or practice was adopted. Id. at 1403-04.

In this case, the Agency prohibited the consumption of food and beverages in the computer rooms and tape library in order to prevent damage to valuable computer equipment. In our view, the Agency's rule, which is designed to eliminate the potential vulnerability of the Agency's property to accidents involving food and beverages, is directly linked to the Agency's objective of safeguarding its computer equipment. By allowing employees to have and consume food and beverages in the computer rooms and tape library, we conclude that the proposals directly interfere with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.

B. The Proposals Do Not Constitute Appropriate Arrangements Within the Meaning of Section 7106(b)(3) of the Statute

In determining whether a proposal is negotiable as an appropriate arrangement for adversely affected employees under section 7106(b)(3) of the Statute, the Authority first determines whether the proposal is intended as an arrangement for employees adversely affected by the exercise of a reserved management right. Once the Authority determines that the proposal is intended as an arrangement, the Authority determines whether the proposed arrangement is appropriate or whether it is inappropriate because it excessively interferes with management's rights. KANG, 21 FLRA at 31-33.

The Union claims that the proposals would benefit employees by permitting them to have and consume food and beverages in the computer rooms and tape library during the course of their shifts. The Union explains that employees work continuous 8-hour shifts and have limited time for breaks. The Union states that, under the proposals, employees would not have to absent themselves from their duties each time they wanted a drink or snack, thereby minimizing the need for unofficial and unscheduled breaks and ensuring continuous computer coverage and workflow. As so explained, we conclude that the proposals are intended as arrangements for employees who are adversely affected by the Agency's assignment of continuous shifts. However, we further find, on balance, that the proposals excessively interfere with the exercise of management's rights.

As noted, the Agency prohibited the consumption of food and beverages in the computer rooms and tape library in order to protect expensive and sensitive computer equipment from damage caused by contact with food and liquid. Permitting employees to consume food and beverages in those areas would increase the risk of damage to that equipment. Although the Union claims that the proposals contain sufficient safeguards against damage and destruction, the safeguards do not provide an absolute guarantee against the concerns raised by the Agency. In this connection, the record before us demonstrates that even though the proposals would limit eating and drinking to specified areas within the computer rooms and tape library and would prevent employees from placing any unsealed food or beverage in proximity to various equipment, the proposals would still pose a risk to the computer equipment. For this reason, we find that the proposals are comparable to the proposal at issue in Voice of America and do not provide sufficient guarantees against damage or destruction to the Agency's equipment.

We also note that, as the Union acknowledges, computer room and tape library employees are provided with two 15-minute breaks per shift, during which time the employees have access to a full-service cafeteria, a snack room, vending machines and a microwave oven. There is no argument by the Union that the employees are unable to use these facilities during their break periods. In addition, the record shows that the employees are not precluded from asking another employee to cover for them if they need to leave the computer room during other than a scheduled break.

On the other hand, the proposals would benefit employees by allowing them to consume food and beverages when they desired to do so, and at a more leisurely pace, without having to wait for their allotted break periods. Additionally, employees would be able to use their break periods for other purposes. On balance, however, we conclude that the minimal benefit to the employees of permitting them to eat and drink in the computer rooms and tape library does not outweigh the negative effect on the Agency's right to pr