45:1213(121)NG - - AFGE Local 2452 and HHS, SSA District Office, Huntington Park, CA - - 1992 FLRAdec NG - - v45 p1213
[ v45 p1213 ]
The decision of the Authority follows:
45 FLRA No. 121
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
HUNTINGTON PARK, CALIFORNIA
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
September 18, 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 concerns a single proposal which addresses the Agency's decision to install a combination lock on the employees' entrance to an Agency office.
For the following reasons, we find that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.
II. Preliminary Matter
Initially, the Union argues that the Agency's allegation of nonnegotiability is "defective and should bar the [Agency] from asserting non-negotiability." Reply Brief at 9. The Union asserts that the allegation "fails to identify any law, rule, or regulation with which [the] disputed language is alleged to conflict and the basis of such alleged conflict[.]" Id.
We reject the Union's argument. The Agency's allegation stated that the disputed proposal was nonnegotiable "because it interferes with management's right to determine its internal security practices." Attachment 2 to Petition for Review at 2. Moreover, neither the Statute nor the Authority's Rules and Regulations require that an allegation of nonnegotiability be made with any particular degree of specificity. The only requirement that an agency specifically support its allegation of nonnegotiability applies after the agency has been served with a petition for review and files a statement of position explaining its reasons for declaring the proposal nonnegotiable. See, for example, National Association of Government Employees and U.S. Department of Defense, National Guard Bureau, Connecticut Army and Air National Guard, Hartford, Connecticut, 40 FLRA 33, 36 (1991)(Connecticut National Guard). Accordingly, the Agency's allegation is sufficient, and the petition is properly before us. See Connecticut National Guard, 40 FLRA at 36-37.
The Union representative will be given the combination to the lock and will be given any subsequent changes to the combination.
IV. Positions of the Parties
The Agency contends that the proposal directly and excessively interferes with its right under section 7106(a)(1) of the Statute to determine its internal security practices. The Agency states that, when a combination lock was installed on the employee access door at the new office location, it decided that "limiting knowledge of the combination to only those individuals who work in the office would further enhance their personal security and also help to safeguard Agency documents." Statement of Position at 9. The Agency notes that the Authority has held that "it will not question the extent of the measures used by an agency to achieve its security objectives as long as they are reasonably related to the purpose for which the particular practice is adopted." Id. at 11. The Agency contends that it has established the "link between the objective of safeguarding employees and property and its decision to permit unrestricted access to the office only to employees who work there." Id. (emphasis in original). Consequently, the Agency asserts, the requirement to provide a Union representative, who is not employed in the office, with the combination to the employees' entrance directly interferes with the Agency's right to determine its internal security practices. The Agency argues that the proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute because "any possible adverse impact on the employee is minimal and, if the proposal were adopted, is outweighed by the total abrogation of management's right to determine its internal security practices." Id. at 12.
The Union asserts that its representative is admitted to the office, upon his or her request, by office employees. Therefore, the Union asserts, the proposal is "limited to substituting the [U]nion representative's possession of the combination for the purely ministerial process of admitting the [U]nion representative . . . upon his or her demand[.]" Reply Brief at 28. In the Union's view, the proposal "does not involve" the Agency's security policy because it requires that management "provide the combination only for entry that the [Agency] separately authorized." Id. The Union also contends that the proposal is a negotiable procedure under section 7106(b)(2) of the Statute.
As an alternative, the Union maintains that the proposal is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. The Union contends that the proposal would benefit employees by ameliorating the following adverse effects: (1) "delays and additional procedural requirements for meeting with the [U]nion representative" when an office employee must respond to the representative's request for admittance; (2) interruptions to office employees' or supervisors' work caused by the need to admit the representative; (3) decreased effectiveness of the health and safety program because the representative can no longer visit the office unannounced; and (4) "diminution of the equal status" of the Agency and the Union resulting from the restriction on the representative's ability to enter the office. Id. at 23-24. The Union asserts that, when weighed against the benefits afforded to employees, the proposal's interference with management's right to determine its internal security practices is "amorphous and minimal." Id. at 25. In the Union's view:
[t]he most obvious reason that providing the combination to the [U]nion representative is insignificant to [the] exercise of the management right is that, whether the combination is provided or not, the [U]nion representative will be able to enter the office on each occasion that she attempts to do so. This means that the outcome, in terms of the employer's objective of ending unrestricted entry through the employee entrance, is not affected at all by providing the combination to the [U]nion representative[.]
Id. at 26 (emphasis in original).
V. Analysis and Conclusions
An agency's determination of when and how employees gain access to agency facilities is within the agency's right to determine its internal security practices under section 7106(a)(1) of the Statute, where that determination is supported by a showing of a reasonable connection to internal security considerations. Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 837 (1991)(Patent and Trademark Office). Here, the Agency states that it limits dissemination of the employees' entrance combination at the Downey Branch Office exclusively to employees of the Downey Office in order to safeguard employees and property. In our view, there is a reasonable relationship between limiting disclosure of the lock combination and the Agency's security concerns. Accordingly, we find that limitation to be within the Agency's right to determine its internal security practices. See id.
The proposal requires the Agency to provide the combination to the Agency employee who is designated by the Union to represent employees at the Downey Office. In this regard, the record indicates that the Union representative "normally assigned to service bargaining unit members in the Downey [Office] is an 'offsite' representative; that is, she or he is employed at another [Agency] office." Reply Brief at 6-7. As the proposal would obligate the Agency to provide an Agency employee not assigned to the Downey Office with the combination, it directly interferes with the Agency's right to determine its internal security practices. As such, the proposal is not a negotiable procedure under section 7106(b)(2) of the Statue. See, for example, National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Information Systems Command, St. Louis, Missouri, 42 FLRA 1112, 1127 (1991).
In deciding whether a proposal constitutes an appropriate arrangement, we must 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 that right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986)(KANG).
Here, the Agency has exercised its right to determine its internal security practices by limiting disclosure of the entry combination to employees assigned to the Downey Office. The Union representative, who is an Agency employee not assigned to the Downey Office, does not have the combination. According to the Union, the Agency's new security policy adversely affects the representative's access to unit employees, interrupts employees' and supervisors' work by requiring that the representative be admitted by someone in the office, impairs the effectiveness of unannounced Union safety inspections, and creates an unequal status between the Union and management. Accordingly, we find that the proposal is intended as an arrangement for employees adversely affected by the exercise of a management right.
To determine whether a proposal excessively interferes with a management right, we weigh "the competing practical needs of employees and managers" to ascertain whether the benefit to employees flowing from the proposal outweighs the proposal's burden on the exercise of the management right or rights involved. KANG, 21 FLRA at 31-32. In weighing such needs in this case, we note initially that the proposal does not concern the Union representative's admittance to the office but, rather, the method of admittance. It is undisputed, in this regard, that the representative is admitted to the office through the employee entrance whenever he or she so requests. However, currently a Downey Office employee or manager must admit the representative. Accordingly, disclosing the combination to the Union representative would benefit employees by eliminating a need to interrupt their work to admit the representative. Disclosure also would eliminate delays in the conduct of representational functions and would facilitate the representative's ability to make unannounced health and safety inspections of the office.
On the other hand, the proposal's burden on the Agency's internal security policy is slight. The Agency would be required to provide the combination only to a single, identified, Agency employee who is not assigned to the Downey Office. Moreover, this employee has a need to conduct business regularly at the Downey Office and currently has access on request through the employees' entrance. In addition, the Agency does not claim that its policy is aimed at monitoring when the Union representative is in the Downey Office or preventing the representative's unescorted access to the office. Furthermore, the Agency does not assert an interest in controlling when the representative may gain access to the office, and it appears from the record that the Agency's security policy is not intended to bar the representative's admittance to the Downey Office during nonduty hours. See Statement of Position at 13-14 (Agency states that "special arrangements could be made to admit the offsite representative at a time when the office normally is not staffed"). Finally, we note that the proposal does not preclude the Agency's changing the combination at any time. For example, the Agency could install a new combination when an employee of the Downey Office is permanently or temporarily reassigned elsewhere, or when the Union appoints a new representative. The proposal requires only that the Union representative for the Downey Office at the time of the change receive the new combination to the employee entrance.
On balance, we conclude that the benefits to the employees and the Union representative of providing the representative with the combination to the employees' entrance outweigh the negative effect on management's right to limit disclosure of the combination. Accordingly, we find that the proposal does not excessively interfere with management's right to determine its internal security practices and is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. Compare Patent and Trademark Office, 41 FLRA at 836-38 (part of provision allowing authorized employees access to their work areas at all times found not to excessively interfere with management's right to determine internal security practices).
The Agency must upon request, or as otherwise agreed to by the parties, bargain concerning the disputed proposal.(2)
I concur with my colleagues' opinion to the extent that it finds that the proposal directly interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. I also concur with my colleagues' opinion to the extent that it finds that the proposal is intended as an arrangement for employees adversely affected by the Agency's exercise of its right to determine its internal security practices under section 7106(a)(1) of the Statute. However, I respectfully dissent from my colleagues' opinion to the extent that it finds that the intended arrangement is appropriate and, thus, negotiable. I would find that the proposal excessively interferes with the Agency's right under section 7106(a)(1) of the Statute to determine its internal security, and; therefore, the proposal does not constitute a negotiable appropriate arrangement.
In deciding whether an arrangement is appropriate, the Authority must determine whether it excessively interferes with the exercise of a management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986) (KANG). In making that determination, the Authority must weigh the competing practical needs of employees and managers. Id. at 31-33.
The Union claims that under the Agency's current internal security practice, whenever an offsite-employee representative desires access to the secured work site, a unit employee or a supervisor must interrupt his work to admit the offsite-employee representative and, as a result, access is delayed. The Union contends that disclosure of the combination to the offsite-employee representative would be beneficial because it would eliminate: (1) the need for work-site employees and supervisors to interrupt their work to admit the offsite-employee representative; and (2) delays in the conduct of representational functions. Finally, the Union contends that disclosure of the combination to the offsite-employee representative would be beneficial because it would facilitate the offsite-employee representative's ability to make unannounced health and safety inspections of the office. Based on the record before the Authority in this case, it appears that any adverse impact that unit members experience as a result of management's exercise of its right under section 7106(a)(1) of the Statute to determine its internal security is minimal, as is the benefit derived from the proposed arrangement.
The Agency states that, in order to safeguard the personal security of its work force and to safeguard its documents, it decided to restrict access to the combination to onsite employees. The Agency, in order to achieve that objective to the maximum extent possible, has enforced the restriction by refusing to give the combination to any offsite employees, including offsite management and offsite-employee union representatives. The Agency states that limiting access to the combination to onsite employees enhances its internal security. The proposal, as plainly worded, would require the Agency to provide the combination to the Union's designated representative, regardless of whether or not that representative is an onsite employee. Disclosure of the combination to a non-onsite employee would erode the Agency's ability to safeguard the personal security of its work force during working hours and to safeguard its documents both during working and nonworking hours.
I cannot join with my colleagues in characterizing the intrusion of the Union's proposal on the Agency's internal security policy as "slight". See American Federation of Government Employees, Local 2452 and U.S. Department of Health and Human Services, Social Security Administration, District Office, Huntington Park, California, 45 FLRA No. 121 at 5 (1992). In support of its conclusion that the intrusion of the Union's proposal on the Agency'