45:0949(95)NG - - AfGE Locals R14-22 and R14-89 and Army HQ, Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, TX - - 1992 FLRAdec NG - - v45 p949



[ v45 p949 ]
45:0949(95)NG
The decision of the Authority follows:


45 FLRA No. 95

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCALS R14-22 AND R14-89

(Union)

and

U.S. DEPARTMENT OF THE ARMY

HEADQUARTERS, U.S. ARMY AIR DEFENSE ARTILLERY CENTER

AND FORT BLISS, FORT BLISS, TEXAS

(Agency)

0-NG-2013

DECISION AND ORDER ON NEGOTIABILITY ISSUES

August 20, 1992

Before Chairman McKee and Members Talkin and Armendariz.1/

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 involves the negotiability of eight proposals submitted in response to the Agency's decision to conduct random, unannounced inspections of motor vehicles and personnel entering or exiting the Agency's facilities. The Union did not file a reply brief.

Proposal 1, which requires that gate inspections be conducted in private, by or under the supervision of a commissioned officer or civilian of equal or higher grade, and in the presence of a Union official, is nonnegotiable because it excessively interferes with the Agency's right to assign work.

Proposal 2, which requires the Agency to provide the Union with advance notice of gate inspections, is nonnegotiable because it excessively interferes with the Agency's right to determine its internal security practices.

Proposals 3 and 4, which require the Agency, prior to each gate inspection, to provide the Union with written instructions governing the inspection and notify the Union of the time, location and standards governing the selection of individuals or vehicles for the inspections are nonnegotiable because they excessively interfere with the Agency's right to determine its internal security practices.

The first sentence of Proposal 5, which provides that the Union may have a representative at any scheduled gate inspections on official time excessively interferes with the Agency's right to determine its internal security practices. As the Agency has withdrawn its allegation of nonnegotiability with regard to the second sentence of Proposal 5, that sentence is no longer in dispute.

Proposals 6 and 7, which authorize a Union representative, respectively, to: (1) observe gate inspections and confer with employees prior to such inspections; and (2) distribute to employees subject to inspections information concerning their rights, are nonnegotiable because they excessively interfere with the Agency's right to determine its internal security practices.

The first sentence of Proposal 8, which provides that employees will not suffer loss of pay or leave or be disciplined for not reporting to work on time due to delay attributable to gate inspections, is negotiable as an appropriate arrangement. The second sentence of Proposal 8, which requires the payment of overtime if an employee's tour of duty is delayed due to a gate inspection, is inconsistent with Government-wide regulations.

II. Background

Fort Bliss, a large military installation adjoining the border between the United States and Mexico, "lies in a corridor long-identified as a major drug smuggling area, and area of ingress into the U.S. by illegal aliens . . . ." Supplemental Statement of Position at 2. The Agency contends that, despite increased security, crimes against property and drug-related offenses on the installation have continued to rise.

The Agency claims that, as a result of the increased theft of Government property and concern over increased drug trafficking on the base, the commander of Fort Bliss

proposed random, unannounced inspections of motor vehicles and personnel entering or exiting the base. Under this policy, automobiles selected for inspection are "inspected in an open area adjacent to the entrance/exit." Statement of Position at 5. According to the Agency, an inspection involves "checking the motor vehicle driver for proper identification and insurance, along with inspection of the motor vehicle passenger compartment, cargo and trunk space, the vehicle's undercarriage and under the hood." Id. at 1-2.

In response to the proposed gate inspection policy, the Union submitted the proposals in dispute in this case.

III. Preliminary Matters

A. Constitutional Authority of a Military Commander

The Agency contends that, "[u]nlike other Federal management officials, military commanders exercise inherent and extensive legal authority over military property and all who enter onto it." Supplemental Statement of Position at 3 (citation omitted). According to the Agency, this authority derives from Article I, Section 8 of the U.S. Constitution, which gives Congress the authority to make all laws necessary and proper to operate the military activity, and from Article II, Section 2, which makes the President Commander in Chief of the Armed Forces. The Agency asserts that in enacting the Statute, Congress did not intend to limit the independent constitutional authority of a military commander "to regulate what transpires on an installation under his control[.]" Id. at 4. We reject the Agency's argument.

The Statute establishes a framework of rights and obligations for Federal employees, labor organizations, and agencies and provides mechanisms for the enforcement of those rights and obligations. Under section 7114(a) of the Statute, a labor organization which has been accorded exclusive recognition is entitled to negotiate "collective bargaining agreements" covering all employees in a unit of exclusive recognition. Section 7103(a)(8) of the Statute defines a "collective bargaining agreement" as "an agreement entered into as a result of collective bargaining." Section 7103(a)(12) of the Statute defines "collective bargaining" as the "mutual obligation of the representative of an agency and the exclusive representative of employees . . . [to] bargain . . . with respect to the conditions of employment affecting [unit] employees . . . ."

The employees involved in this case are employed by the Department of the Army at Fort Bliss, Texas. The Agency makes no claim that any of these employees are excluded from coverage of the Statute or that the Army is otherwise exempted from coverage by the Statute. Therefore, we find that the Agency has not established any basis on which to conclude that the rights and obligations created by the Statute are not applicable to the employees in this case.

Moreover, as discussed in more detail below, nothing in the disputed proposals restricts in any manner the authority of the commander of Fort Bliss to require inspections of persons and vehicles entering or exiting Fort Bliss. Rather, the proposals concern only the implementation of the inspection policy as it pertains to unit employees. Thus, we reject the Agency's claim that the proposals impinge on the Constitutional authority of a military commander.

B. Conditions of Employment

The Agency argues that the decision to conduct gate inspections "is not a personnel policy, practice or matter that affects working conditions." Supplemental Statement of Position at 5. According to the Agency, the decision, which affects "not only . . . civilian employees, but . . . any person who may enter onto [Fort Bliss]," is not intended to "regulate working conditions of civilian employees . . . but [to] maintain security and the authority of the commander . . . ." Id.

Section 7103(a)(14) of the Statute defines the term "conditions of employment" as "personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions[.]" In deciding whether a proposal involves a condition of employment, the Authority considers whether: (1) the proposal pertains to unit employees; and (2) the record establishes a direct connection between the proposal and the work situation or employment relationship of unit employees. Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 237 (1986) (Antilles).

Proposal 1 establishes gate inspection procedures applicable to unit employees. Proposals 2 through 7 concern the Union's function as the representative of employees and provide the Union with, among other things, advance notice of the times and locations of inspections, the criteria used to select motor vehicles for inspections, and official time for a Union representative to be present during inspections. Proposal 8 seeks to mitigate certain adverse effects on employees resulting from gate inspections. The record does not reflect that these proposals would apply to or affect any individuals other than unit employees. Consequently, we conclude that the proposals pertain to unit employees and, as such, they satisfy the first prong of the Antilles test.

We also find that the proposals satisfy the second prong of the Antilles test. In this connection, the record establishes that employees who refuse to consent to an inspection of their person or vehicle could be denied access to the Agency's premises. Employees who are denied access to the Agency's premises during their scheduled hours of duty would suffer a loss of leave or pay because they would be prevented from reporting to work. Moreover, it is apparent that employees would be subject to apprehension and possible disciplinary action if stolen property or illegal drugs were found in their motor vehicle or on their person during the course of a gate inspection. In addition, employees leaving the installation at the end of their work day could be subject to substantial delays in exiting the Agency's premises as a result of gate inspections. Consequently, implementation of the Agency's decision to conduct random, unannounced inspections of motor vehicles and personnel entering or exiting the Agency's facilities directly affects the working conditions of unit employees. See U.S. Department of the Air Force, Griffiss Air Force Base, Rome, New York, 37 FLRA 570, 574-76 (1990), aff'd sub nom. U.S. Department of the Air Force, Griffiss Air Force Base, Rome, New York v. FLRA, 949 F.2d 1169 (D.C. Cir. 1991).

Based on the foregoing, we conclude that the disputed proposals satisfy both prongs of the Antilles test and, as a result, directly affect working conditions of unit employees.

IV. Proposal 1

When the person to be inspected is a civilian employee, the inspection shall be conducted, in private, by or under the supervision of a commissioned officer, a civilian of equal or higher grade, and a Union Official.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 1 directly and excessively interferes with its right to assign work under section 7106(a)(2)(B) of the Statute. The Agency argues that, as the proposal "mandates that only commissioned officers or civilians of equal or higher grade supervise the inspection[,]" the proposal "prohibits the assignment of this work to any other individual." Statement of Position at 3. Further, according to the Agency, the proposal interferes with the Agency's right to assign work by assigning the Union the "responsibility to conduct or supervise the inspections." Id. at 7. The Agency asserts that the proposal's limitations on who can be assigned particular duties "do not ameliorate any negative aspect associated with management's right to assign work" and are "absolute." Id. at 4. According to the Agency, as "[t]he benefit to be derived from the proposal is purely speculative[,]" the proposal excessively interferes with management's right to assign work. Id.

The Agency asserts that the proposal also directly and excessively interferes with its right to determine its internal security practices under section 7106(a)(1) of the Statute. In this connection, the Agency asserts that its inspection policy "will assist it in limiting and . . . eliminating, pilferage and drug trafficking on its installation." Id. at 6. The Agency argues that, "by establishing a particular limitation on that decision, i.e., conducting inspections in private," the proposal would interfere with "logistical considerations which prevent inspections of vehicles being accomplished in private[]" and thereby "negate the implementation of . . . internal security practices." Id. The Agency also claims that by requiring inspections to be conducted by or under the supervision of a Union official, the proposal permits the Union to "completely terminate the use of inspections by simply not attending." Id. at 7. According to the Agency, as "only those individuals who have some reason to be fearful of inspections would find solace in private inspections[,]" the effect on management rights "far outweighs any benefit . . . to . . . employees . . . ." Id. at 6-7.

Next, the Agency argues that the proposal interferes with its right to determine the methods and means of performing work under section 7106(b)(1) of the Statute. According to the Agency, the decision as to how and where an inspection will take place "is an integral aspect" of the means used by the Agency "to safeguard and secure the installation's personnel and property." Id. at 5. The Agency contends that requiring it to conduct inspections is inconsistent with the its determination that "the only feasible method" to conduct automobile inspections is to inspect automobiles "in an open area adjacent to the entrance/exit." Id. at 5.

Finally, the Agency asserts that the proposal directly interferes with the Agency's right to assign employees under section 7106(a)(2)(A) of the Statute. According to the Agency, the "mandatory assignment of a union official to inspection work denies the [Agency] the right to decide who should be assigned these duties . . . ." Id. at 8.

2. Union

The Union argues that Proposal 1 is intended to protect an "employee's privacy interest" and to provide "a 'check' on the gate inspector to prevent an abuse of power." Memorandum in Support of Petition for Review at 3. According to the Union, "the benefit to the employee far outweighs any interference on a management right." Id.

B. Analysis and Conclusions

1. Direct Interference

We reject the Agency's claim that Proposal 1 directly interferes with the Agency's right to assign employees under section 7106(a)(2)(A) of the Statute. Management's right to assign employees under section 7106(a)(2)(A) of the Statute is the right to assign employees to positions. See American Federation of Government Employees, AFL-CIO, Local 987 and U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia, 35 FLRA 265, 269 (1990). Nothing in the wording of Proposal 1, or in the record in this case, indicates that Union officials are to be assigned to positions. Consequently, we conclude that Proposal 1 does not involve the exercise of management's right to assign employees under section 7106(a)(2)(A) of the Statute.

However, we find that Proposal 1 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute.

Proposal 1 provides that gate inspections can be conducted only under the supervision of a commissioned officer, a civilian of equal or higher grade than the person being inspected, and a Union official. Proposals that require a particular employee or a particular office to perform a designated duty directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute because they prevent management from assigning those tasks to other employees. See, for example, National Federation of Federal Employees, Local 1437 and United States Army Armament, Research, Development and Engineering Center, Picatinny Arsenal, New Jersey, 35 FLRA 1052, 1060 (1990). Therefore, by precluding the assignment of supervising gate inspections to other individuals, Proposal 1 directly interferes with management's right to assign work.

2. Appropriate Arrangement

A proposal that directly interferes with management's rights under section 7106(a) of the Statute is negotiable if it constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. To determine whether a proposal constitutes an appropriate arrangement, we determine whether the proposal is: (1) intended as an arrangement for employees adversely affected by the exercise of a management right; and (2) appropriate because it does not excessively interfere with the exercise of management's right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986) (KANG).

According to the Union, Proposal 1 is intended as an appropriate arrangement for employees adversely affected by the Agency's decision to conduct unannounced random gate inspections. As relevant here, the Union argues that Proposal 1 "provides a 'check' on the gate inspector to prevent an abuse of power." Memorandum in Support of Petition for Review at 3. Applying KANG, we find that, even assuming that Proposal 1 is intended as an arrangement for employees who may be adversely affected by management's decision to assign supervision of conducting unannounced random gate inspections to particular individuals, the proposal excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

In this connection, the record establishes that employees are selected for gate inspections on a random basis. In addition, gate inspections may be conducted at one or more of the 11 entrance/exit gates at the same time.  Proposal 1, however, precludes the assignment of gate inspection supervision to individuals other than those specified in the proposal. Indeed, if any of the individuals specified in the proposal were unavailable for any reason, management would be unable to conduct gate inspections. In our view, the burden placed on management's ability to conduct gate inspections by Proposal 1 is significant and outweighs any benefit that might accrue to employees by having only specified individuals supervise gate inspections. As the burden on management's ability to conduct gate inspections outweighs the benefits accorded to employees, Proposal 1 does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Accordingly, it is nonnegotiable.

In view of our decision that Proposal 1 excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute, it is unnecessary for us to address the Agency's additional arguments concerning the negotiability of the proposal.

V. Proposals 2, 3, and 4

Proposal 2

The Union shall be given three (3) hours notice when a gate inspection has been scheduled. If the inspection is scheduled during the hours that employees are first arriving to their scheduled shift, the Union shall be given notice of the inspection the day before that scheduled inspection.

Proposal 3

The Union shall receive a copy of the specific and complete written instruction issued by the Commanding General prior to the beginning of each inspection.

Proposal 4

The Union shall be notified of the times and locations of inspections and the selection standard.

A. Positions of the Parties

1. Agency

The Agency contends that, by providing the Union with advance notice of individual gate inspections, Proposals 2, 3, and 4 directly and excessively interfere with its right to determine its internal security practices under section 7106(a)(1) of the Statute. In this connection, the Agency argues that an integral aspect of the gate inspections is that matters concerning the time, location and the specific criteria for determining which motor vehicles will be selected for inspection are "kept on a need to know basis." Statement of Position at 2. The Agency asserts further that "[i]f advance notice is given, individuals may either postpone planned thefts until inspections are not being conducted or use gates where inspections are not occurring." Id. The Agency states that "announcing inspections prior to their implementation negates . . . two of the underlying reasons for establishing the inspection policy -- deterrent to theft of government property and drug trafficking and apprehending employees involved in these activities." Id. The Agency claims, therefore, that any proposal "which negates the [Agency's] ability to conduct unannounced random motor vehicle inspections" directly interferes with the Agency's "internal security determinations . . . ." Id. at 9.

As to Union's claim that the proposals are appropriate arrangements, the Agency asserts that any adverse effect on employees resulting from the inspections is within the control of the employee. According to the Agency, "[i]f the employee is not transporting improper items, then he or she will not be apprehended." Id. The Agency also argues that any adverse effect on employees resulting from conducting inspections without the presence of a Union representative is minimal and would be outweighed by the significant effect on the Agency's ability to safeguard its property and personnel. According to the Agency, personnel aware of the procedures for advance Union notification of gate inspections "will be put on notice whenever a [U]nion official leaves his or her work station near the end of the day[] . . . and will not act on any plan to steal [G]overnment property." Id. Thus, the Agency asserts that providing notification to the Union would result in notification to employees and "negate the 'unannounced' nature of the inspections." Id. at 10.

2. Union

The Union contends that Proposal 2 is an appropriate arrangement because employees have a right to representation during the inspection. The Union claims that "[i]f the Union representative is readily available, the inspection can proceed with minimal delay." Petition for Review at 3-4.

The Union argues that Proposals 3 and 4 merely require the Agency to provide information concerning the criteria for selecting automobiles for inspection. The Union asserts that the proposals are "reasonable in light of the employee's right . . . to be represented at the inspection." Id. at 4-5. According to the Union, it cannot "adequately represent the interests of the employee unless it knows what standard or criteria [for selecting motor vehicles for inspection] management must follow." Id. at 5. The Union contends, therefore, that Proposals 3 and 4 "qualify as appropriate arrangements . . . ." Id.

B. Analysis and Conclusions

1. Direct Interference

We reject the Union's claim that the proposals implement an employee's right to representation during gate inspections. In this respect, section 7114(a)(2)(B) of the Statute provides that an exclusive representative shall be given the opportunity to be represented at any examination of a unit employee by an agency representative in connection with an investigation if the employee: (1) reasonably believes that discipline may result from the examination; and (2) the employee requests representation. See, for example, Norfolk Naval Shipyard, Portsmouth, Virginia, 35 FLRA 1069, 1073-74 (1990). However, the right to representation attaches only if an employee makes a valid request for representation. Id.

Proposals 2, 3, and 4 do not implement the Union's right to represent an employee after a valid request for such representation has been made by the employee. Rather, based on the Agency's uncontested allegations, Proposals 2, 3, and 4 require the Agency to notify the Union of the time, location and criteria for selecting motor vehicles for inspections before any employee has been selected for inspection and before any employee has made a valid request for representation under section 7114(a)(2)(B) of the Statute. Accordingly, we reject the Union's claim that Proposals 2, 3, and 4 implement an employee's right to representation under section 7114(a)(2)(B) of the Statute. We also note, however, that nothing in section 7114(a)(2) prevents unions from negotiating contractual rights to union representation which exceed the rights set forth in that section of the Statute. See American Federation of Government Employees, AFL-CIO, Local 3354 and U.S. Department of Agriculture, Farmers Home Administration, Finance Office, St. Louis, Missouri, 34 FLRA 919, 924 (1990) (Farmers Home Administration, Finance Office, St. Louis, Missouri).

Insofar as Proposals 2, 3, and 4 require the Agency to provide the Union with advance notice of the time, location and criteria for selecting motor vehicles for gate inspections, we note that the duty to bargain under the Statute extends to the release and disclosure of information concerning the conditions of employment of unit employees to the extent that the disclosure is not contrary to law or regulation. For example, Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410, 1423 (1991). In this case, the Agency makes no claim that disclosure of information relating to the time, location, and criteria for selecting motor vehicles for gate inspections is itself contrary to law or regulation. Rather, the Agency's sole objection to Proposals 2, 3, and 4 is that, by requiring advance notice of such information to be provided to the Union, disclosure of that information to employees necessarily will follow and, thereby, negate the Agency's ability 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) of the Statute includes the right to determine the policies and practices which are part of its plan to secure or safeguard its personnel, physical property, and operations against internal and external risks. See, for example, National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 708 (1990). 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, for example, American Federation of Government Employees, Council of Prison Locals, Local 919 and U.S. Department of Justice, Federal Bureau of Prisons, Leavenworth, Kansas, 42 FLRA 1295, 1298 (1991). Where the agency shows a link, or reasonable connection, between its goal of safeguarding its personnel, property, or operations and the practice or investigative technique designed to implement that goal, a proposal that directly interferes with the agency's practice or investigative technique conflicts with the agency's right under section 7106(a)(1). See, for example, id.

Here, the Agency argues that in order to deter theft of Government property and drug trafficking at Fort Bliss, it must conduct random unannounced gate inspections of motor vehicles and persons entering or exiting the base. According to the Agency, these inspections must be random and unannounced because "[o]nly by surprising individuals with these inspections will the [Agency] have any confidence that the [gate inspections] are achieving the desired results of protecting its personnel and property." Statement of Position at 2. We find that the Agency has established that its policy of conducting gate inspections of persons and vehicles entering or exiting Fort Bliss is linked to its stated purpose of reducing theft of Government property and curtailing drug transactions. Consequently, a gate inspection constitutes an internal security practice under section 7106(a)(1) of the Statute.

The Agency also argues, in this regard, that an integral aspect of the gate inspections is that information as to the time, location and criteria for determining which motor vehicles will be selected for inspection is "kept on a need to know basis." Statement of Position at 2. The Agency asserts further that "[i]f advance notice is given, individuals may either postpone planned thefts until inspections are not being conducted or use gates where inspections are not occurring." Id. We conclude that the Agency also has established that its policy of conducting gate inspections based on information which is not disclosed beyond a "need to know basis" is linked to its stated purpose of safeguarding the property and operations of the installation and its employees.

By requiring the Agency to provide notice to the Union of the times, locations, and criteria for selecting motor vehicles for inspection prior to particular gate inspections, Proposals 2, 3, and 4 would require disclosure of such information beyond a "need to know basis." Therefore, Proposals 2, 3, and 4 directly interfere with the Agency's right to determine its internal security practices. See 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, 1401-03 (1991) (Member Talkin concurring).

2. Appropriate Arrangements

The Union asserts that Proposals 2, 3, and 4 are intended as appropriate arrangements for employees adversely affected by the Agency's decision to conduct gate inspections. The Union argues that providing it with advance notice of the time, location, and criteria for selecting motor vehicles for inspection assures that it will have "adequate time to designate a representative to be at the gate inspection." Memorandum in Support of Petition for Review at 3. The Union also asserts that it "cannot adequately represent the interests of the employees unless it knows what standard or criteria [for selecting motor vehicles for inspection] management must follow." Id. at 5.

Applying KANG, we find that even assuming that Proposals 2, 3, and 4 are arrangements, they are not appropriate arrangements because they would excessively interfere with management's right to determine its internal security practices. Providing advance notice to the Union of the time, location, and criteria for selecting motor vehicles for gate inspections would benefit employees by assuring that a Union representative would be available to represent them if a valid request is made. However, this benefit does not offset the burden on the Agency's right to determine its internal security practices.

In this connection, as previously indicated, the Agency asserts that gate inspections must be "unannounced and random" because, "[o]nly by surprising individuals with these inspections will the [Agency] have any confidence that the security measures are achieving the desired results of protecting its personnel and property." Statement of Position at 2. However, the Agency claims without dispute by the Union, that "[p]ersonnel aware of these [advance notification procedures] will be put on notice whenever a [U]nion official leaves his or her work station near the end of the day[] . . . and will not act on a plan to steal government property." Id. at 9. Obviously, the deterrent effect of gate inspections is negated if employees obtain knowledge of when and where such inspections are to occur. Consequently, we conclude that, as the burden placed on management's ability to determine its internal security practices outweighs the limited benefit accorded to employees, Proposals 2, 3, and 4 do not constitute appropriate arrangements within the meaning of section 7106(b)(3) of the Statute. Accordingly, they are nonnegotiable.

VI. Proposals 5, 6, and 7

Proposal 5

The Union may have a representative at any scheduled gate inspection. Union representatives shall receive official time to be at the gate for the period of inspection.

Proposal 6

The Union representative shall have the opportunity to speak with the individual, subject to inspection, prior to the beginning of the inspection. The Union representative shall have the opportunity to directly observe the inspection as it is occurring.

Proposal 7

During the inspection period, the Union shall be able to distribute to employees, potentially subject to inspection, information on their rights in the process.

A. Positions of the Parties

1. Agency

The Agency contends that by requiring the Union to be notified prior to or concurrent with a scheduled gate inspection, the first sentence of Proposal 5 and Proposals 6 and 7 directly interfere with its right to determine its internal security practices under section 7106(a)(1) of the Statute. According to the Agency, "a key factor in the success of the [gate] inspections is that they must be unannounced." Statement of Position at 11. The Agency claims that Union notification of scheduled gate inspections would jeopardize the integrity of the inspection process because employees would become aware of the times and locations of gate inspections as a result of the notification. The Agency also argues that "[U]nion notification of planned inspections removes the [U]nion official from being subjected to unannounced searches." Id. at 12.

With regard to the last sentence of Proposal 5, which provides that Union representatives will be on official time while attending gate inspections, the Agency notes that such inspections may extend beyond normal duty hours. The Agency also notes that the Union did not indicate whether Union representatives would be authorized overtime or compensatory time if an inspection extends beyond a representative's normal duty day. The Agency states that, as it has interpreted the last sentence of Proposal 5 as requiring official time only if the Union representative otherwise would be in a duty status, it "withdraws its allegation of nonnegotiability" concerning this sentence. Id. at 13.2/

2. Union

The Union contends that gate inspections "are investigations" and that under section 7114(a)(2)(B) of the Statute "an employee is entitled to representation if he/she reasonably believes that an examination may result in a disciplinary action and if he/she request[s] representation." Memorandum in Support of Petition for Review at 5. According to the Union, these proposals permit "access to a representative" and constitute appropriate arrangements. Id. The Union notes that its representative will not "play any role in the inspection" and that "[a]ny delay caused by a discussion between the employee and the representative would be minimal." Id. at 6.

B. Analysis and Conclusions

As stated previously, an employee's right to representation under section 7114(a)(2)(B) attaches only if an employee makes a valid request for representation. Proposals 5, 6, and 7 do not concern matters related to the Union's right to represent an employee after a valid request

for such representation has been made by an employee. Rather, Proposals 5, 6, and 7 require Union presence at gate inspections before any employee has been selected for inspection and before the employee has made a valid request for representation under section 7114(a)(2)(B) of the Statute. Accordingly, we reject the Union's claim that Proposals 5, 6, and 7 implement an employee's right to representation under section 7114(a)(2)(B) of the Statute. As we stated previously, however, nothing in section 7114(a)(2) prevents unions from negotiating contractual rights to union representation which exceed the rights set forth in that section of the Statute. See Farmers Home Administration, Finance Office, St. Louis, Missouri, 34 FLRA at 924.

We conclude that Proposals 5, 6, and 7 are nonnegotiable. In this connection, the Agency argues, without dispute by the Union, that Proposals 5, 6, and 7 "require notification of [gate] inspections either before they begin or concurrent with their implementation." Statement of Position at 10. The Agency's argument is consistent with the plain wording of the proposals. For example, the first sentence of Proposal 5 provides that a Union may have a representative at any gate inspection. Proposal 6 grants the Union representative the opportunity to speak to an individual subject to an inspection prior to the beginning of the inspection. Proposal 7 permits the Union to distribute to employees information concerning an employee's rights in the inspection process during the inspection process. For a Union representative to have the right to: (1) be present at any inspection; (2) speak to an employee prior to the inspection; (3) observe an inspection as it is occurring; and (4) to distribute information to employees subject to an inspection during the inspection process, the Union must have advance notice of the inspection. Consequently, in the absence of any Union statement to the contrary, we find that Proposals 5, 6, and 7 require advance notice of the times and locations of gate inspections to be provided to the Union.

As noted in connection with Proposals 2, 3, and 4, a requirement to provide the Union with advance notice of the time and location of gate inspections directly and excessively interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute because "[p]ersonnel aware of these [advance notification procedures] will be put on notice whenever a [U]nion official leaves his or her work station near the end of the day[] . . . and will not act on a plan to steal government property." Statement of Position at 9. In other words, notifying the Union in advance of gate inspections of the time and locations of such inspections increases the risk that such information will be inadvertently disclosed to employees and, thereby negate the deterrent effect of gate inspections on employees. Consequently, as Proposals 5, 6, and 7 require that advance notice of impending gate inspections be provided to the Union, they directly and excessively interfere with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. Accordingly, they are nonnegotiable.

VII. Proposal 8

The parties agree that employees will neither suffer loss of pay or be charged any type of leave, nor receive disciplinary action for not reporting to work on time or returning late from meal periods if the reason for the delay is attributable to a gate inspection. The employer agrees to pay overtime if the employees [sic] tour is extended because he/she is delayed at the gate due to an inspection.

A. Positions of the Parties

1. Agency

The Agency contends that the first sentence of Proposal 8 directly and excessively interferes with its right under section 7106(a)(2)(A) of the Statute to discipline employees. The Agency states that although an employee could raise as a defense to a disciplinary action based on tardiness the fact that the tardiness was due to a gate inspection, "prohibiting the imposition of discipline in particular situations is not an appropriate arrangement but a complete abrogation of management's rights." Statement of Position at 15.

The Agency argues that the second sentence of Proposal 8 is inconsistent with Office of Personnel Management (OPM) regulations. According to the Agency, "[t]ime spent by employees waiting to exit the installation because of motor vehicle inspections is not considered an activity closely related to the employee's principal activity[]" and, thus, is not compensable under 5 C.F.R. °° 550.112(b)(2) and 551.412. Id.

2. Union

The Union argues that Proposal 8 is an appropriate arrangement for employees adversely affected by the Agency's decision to conduct gate inspections. According to the Union, the proposal "provides fairness for and justice to the employees." Memorandum in Support of Petition for Review at 7. In this connection, the Union contends that it is not reasonable for an employee to be disciplined or subjected to a loss of pay for arriving late to work when the late arrival is caused by the delay inherent in a gate inspection. The Union concludes that "[t]he benefit to the employee outweighs any infringement on the Agency's rights." Id.

B. Analysis and Conclusions

1. First Sentence

Proposals that prevent management from disciplining employees for specified conduct directly interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. See, for example, United Power Trades Organization and U.S. Department of the Army, Corps of Engineers, Walla Walla, Washington, 44 FLRA 1145, 1172 (1992) petition for review filed sub nom. United States Department of the Army, Corps of Engineers, Walla Walla, Washington v. FLRA, No. 92-70500 (9th Cir. July 2, 1992). The first sentence of Proposal 8 prevents the Agency from disciplining employees for tardiness if the reason for the tardiness is attributable to a gate inspection. By preventing the Agency from disciplining employees in these circumstances, the first sentence directly interferes with the Agency's right to take disciplinary action under section 7106(a)(2)(A) of the Statute. See National Association of Government Employees, Local R5-82 and U.S. Department of the Navy, Navy Exchange, Naval Air Station, Jacksonville, Florida, 43 FLRA 25, 41 (1991).

The Union argues that the first sentence of Proposal 8 is an appropriate arrangement for employees adversely affected by the Agency's decision to conduct gate inspections. According to the Union, "[i]t is not reasonable for [an employee] to be disciplined or subjected to a loss of pay[]" for having arrived late to work because of delay due to a gate inspection. Memorandum in Support of Petition for Review at 7. Applying the principles set forth in KANG, we find that the first sentence of Proposal 8 is intended as an arrangement for employees adversely affected by the exercise of management's right to determine its internal security practices by conducting gate inspections under section 7106(a)(1) of the Statute.

By precluding the imposition of discipline for tardiness resulting from a gate inspection, the first sentence provides a significant benefit to employees. On the other hand, we find the burden placed by the first sentence on management's right to discipline is minimal. In our view, the Agency's interest in disciplining an employee for tardiness resulting from a gate inspection, which is conducted to further the Agency's interest in safeguarding its property and personnel, is, at most, negligible. In addition, in the absence of any evidence to the contrary in the record of this case, we find that the first sentence would not preclude the Agency from disciplining an employee for tardiness that did not result from a gate inspection. Balancing the negligible burden imposed on management's right to discipline against the benefit of protection from discipline afforded employees who are tardy as a result of a gate inspection, we find that the first sentence of Proposal 8 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

In concluding that the first sentence of Proposal 8 constitutes an appropriate arrangement under section 7106(b)(3), we find misplaced the Agency's reliance on American Federation of Government Employees, Local 987 and U.S. Department of the Air Force, Robins Air Force Base, Georgia, 37 FLRA 197, 206 (1990), (Member Armendariz concurring in part and dissenting in part) (Robins Air Force Base), reversed at to other matters sub nom. United States Department of the Air Force v. FLRA, 952 F.2d 446 (D.C. Cir. 1991) (Department of the Air Force v. FLRA). The first sentence of the second part of the proposal in dispute in that case precluded the imposition of discipline for tardiness resulting from malfunctioning security gates. Our conclusion that the disputed sentence was not an appropriate arrangement was based on the absence of any support for the union's claim that the sentence constituted an appropriate arrangement. Here, the Union has provided specific support for its claim that the first sentence of Proposal 8 is an appropriate arrangement.

2. Second Sentence

The second sentence of Proposal 8 requires the Agency to pay overtime to any employee whose departure from the worksite at the end of a workday is delayed due to a gate inspection. We conclude that the second sentence of Proposal 8 is inconsistent with applicable Government-wide regulations.

Nothing in the record before us indicates whether the employees covered by Proposal 8 have their overtime entitlement determined under 5 U.S.C. ° 5542 or under the Fair Labor Standards Act (FLSA). In this regard, in arguing that the second sentence is inconsistent with Government-wide regulations, the Agency relies both on regulations applicable to employees covered by 5 U.S.C. ° 5542 and regulations applicable to employees covered by the FLSA. In the absence of any other information in the record, we assume that some of the employees involved are covered by the overtime provisions of 5 U.S.C. ° 5542 and other employees are covered by the overtime provisions of the FLSA.

As relevant here, OPM is authorized to promulgate regulations implementing 5 U.S.C. ° 5542. See 5 U.S.C. ° 5548. OPM regulations implementing the overtime provisions of 5 U.S.C. ° 5542 provide that certain activities, termed postshift activities, are not compensable unless such activities are closely related and indispensable to the principal activities an employee is engaged to perform and will last more than 10 minutes. 5 C.F.R. ° 550.112(b). These regulations are Government-wide, within the meaning of section 7117 of the Statute. See, for example, Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 22 FLRA 351, 354 (1986) (Office of Dependents Schools), aff'd sub nom. Overseas Education Association, Inc. v. FLRA, 827 F.2d 814 (D.C. Cir. 1987). OPM also is authorized to promulgate regulations implementing the provisions of the FLSA applicable to Federal employees covered by the FLSA. See 5 C.F.R. ° 551.101. OPM regulations implementing the FLSA provide that postshift activities are not compensable unless such activities are closely related and indispensable to the principal activities an employee is engaged to perform and will last more than 10 minutes. 5 C.F.R. ° 551.412. These regulations also are Government-wide, within the meaning of section 7117 of the Statute. Office of Dependents Schools.

The Agency asserts that "waiting to exit the installation because of motor vehicle inspections is not considered an activity closely related to the employee's principal activity." Statement of Position at 15. The Agency's assertion is reasonable and is not disputed by the Union. Consequently, we conclude that, insofar as the second sentence of Proposal 8 applies to employees who are covered by 5 U.S.C. ° 5542 it is inconsistent with 5 C.F.R. ° 550.112(b). See Robins Air Force Base. In addition, based on the Agency's uncontested statement that waiting to exit the installation because of motor vehicle inspections is not an activity closely related to the employee's principal activity, we conclude that, insofar as the second sentence of Proposal 8 applies to employees who are covered by the FLSA, it is inconsistent with 5 C.F.R. ° 550.412. See Department of the Air Force v. FLRA. In Department of the Air Force v. FLRA, the court held that the portion of the disputed proposal requiring overtime compensation under the FLSA for time that employees were delayed in leaving worksite because of malfunctioning security gates was inconsistent with OPM regulations implementing the FLSA which exclude postshift activities not closely related to the principal activities from hours of work. We hereby adopt the court's decision on this point.3/

Consequently, we find that, because the second sentence of Proposal 8 is inconsistent with Government-wide regulations, it is nonnegotiable. In addition, in view of our decision that the second sentence of Proposal 8 is inconsistent with Government-wide regulations, it is unnecessary for us to address the Union's claim that the second sentence is an appropriate arrangement. Section 7106(b)(3) applies only to management's exercise of its rights under section 7106. See American Federation of State, County and Municipal Employees, Local 3097 and U.S. Department of Justice, Justice Management Division, 42 FLRA 412, 492 (1991) petition for review filed sub nom. United States Department of Justice, Justice Management Division v. FLRA, No. 91-1582 (D.C. Cir. Nov. 26, 1991).

VIII. Order

The petition for review concerning Proposals 1, 2, 3, 4, 5, 6, 7 and the second sentence of Proposal 8 is dismissed. The Agency must, upon request or as otherwise agreed to by the parties, bargain on th