47:0873(83)NG - - NFFE, Local 28 and Defense Commissary Agency - - 1993 FLRAdec NG - - v47 p873



[ v47 p873 ]
47:0873(83)NG
The decision of the Authority follows:


47 FLRA No. 83

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 28

(Union)

and

DEFENSE COMMISSARY AGENCY(1)

(Agency)

0-NG-2082

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

June 11, 1993

_____

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 involves the negotiability of two proposals relating to a policy of random, unannounced inspections of personal hand-carried items as employees exit commissary stores.(2)

Proposal 1 requires that purses and pocketbooks will not be inspected unless there is reason to believe that an unauthorized possession or theft has occurred. Proposal 2 requires the presence of the Union to witness spot checks of bargaining unit employees. 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.

II. Background and Preliminary Matter

Sometime before the filing of the petition in this case by the National Federation of Federal Employees (NFFE) on behalf of NFFE, Local 28 (Union), a reorganization took place within the Department of Defense (DOD). The reorganization created the Defense Commissary Agency (DeCA) to which were transferred all military department commissary stores. DeCA is responsible for a worldwide system of commissary stores that sell groceries and household supplies to members of the military services, their dependents and other authorized patrons. Included in the transfer to DeCA were the commissary stores at the U.S. Department of the Army Headquarters, Fifth U.S. Army and Fort Sam Houston, Texas (Fort Sam Houston), at which the Union represents employees.

Following its creation, DeCA and three national unions, including NFFE, entered into a memorandum of agreement (MOA) dated September 19, 1991. In the MOA, DeCA agreed "to honor the terms of the current collective bargaining agreements affecting Commissary Stores, pending the resolution of any questions of representation which may be raised as a result of the creation of DeCA and the concurrent transfer of function incident to its creation." Statement of Position Enclosure 1 at 1. The MOA also provided that it was not designed to interfere with DeCA's "obligation to bargain consonant with the [S]tatute concerning any changes in working conditions implemented at the Store level." Id.

Thereafter, DeCA issued Directive 40-19, dated July 31, 1992, which detailed DeCA's security program "to safeguard DeCA resources and to reduce loss, theft, damage and waste of those resources." Statement of Position at 2. Included in the directive is the policy of conducting unannounced random spot checks of employees' hand-carried items as employees exit commissary stores. In response to the issuance of the directive, the Union submitted the proposals at issue and Fort Sam Houston declared them nonnegotiable. DeCA filed a statement of position in which it maintains that it is the "true Agency in interest" and that the civilian personnel office at Fort Sam Houston "was acting as an agent for DeCA at all times relevant to this negotiability appeal and not for the U.S. Army." Id. at 1.

The Agency now argues that the petition for review should either be dismissed or held in abeyance. First, the Agency argues that the petition for review should be dismissed because the subject matter of the proposals concerns matters that go beyond the scope of impact and implementation bargaining and because the proposals interfere with management's right to determine internal security practices under section 7106(a)(1) of the Statute.

Alternatively, the Agency argues that the petition should be held in abeyance pending resolution of outstanding "litigation" relating to a question concerning representation (QCR). Id. at 2. The Agency notes that although the Union did not file a petition that raises a QCR at Fort Sam Houston, "the DeCA employees are no longer a part of the Fort Sam Houston bargaining unit . . . [and] the [U]nion has no standing within DeCA to challenge the negotiability of any subject area because they have not been certified by the [Authority] as the exclusive representative of the DeCA employees." Id.

The Union states that it "is the correct appealing party." Response at 1. The Union also argues that the MOA did not limit DeCA to impact and implementation bargaining and asserts that "the parties agreed to continue full scale bargaining." Id. The Union claims that the arguments raised by the Agency involve factual issues that should be addressed in other appropriate proceedings. In support, the Union cites American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984) (Wurtsmith Air Force Base).

We reject the Agency's contention that the petition for review should be dismissed or held in abeyance. There is no dispute in this case that the proposals contained in the petition for review were declared nonnegotiable under the Statute. It is well established that where the conditions governing review of a negotiability appeal have been met, a union is entitled to a decision from the Authority on whether disputed proposals are negotiable under the statute even though additional issues may exist, such as those relating to a union's status as exclusive representative or to an agency's obligation to bargain under the terms of an agreement. See, for example, National Association of Agricultural Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, 22 FLRA 451, 453 (1986); See also American Federation of Government Employees, AFL-CIO, Local 2736 v. FLRA, 715 F.2d 627, 631 (D.C. Cir. 1983). Here, the Union filed a petition for review after its proposals were declared nonnegotiable. We find that the conditions governing review of a negotiability appeal, set forth in section 2424.1 of our Rules and Regulations, have been met. Consequently, we conclude that the petition for review is properly before us. To the extent the Agency raises issues concerning its bargaining obligation and the Union's status as the exclusive representative, those issues should be addressed in other appropriate proceedings. Wurtsmith Air Force Base, 14 FLRA at 306 n.6.

III. Proposal 1

Purses and/or Pocket books [sic] will not be inspected unless there is reason to believe an unauthorized possession or theft has taken place (e.g. observed in action or an unusually large bulge).

A. Positions of the Parties

1. Agency

The Agency declared the proposal nonnegotiable on the basis that it would nullify DeCA's policy of "unannounced random spot checks" of all hand carried items. Petition for Review, Attachment at 1. In its statement of position, the Agency argues that the proposal interferes with management's right to determine its internal security practices under section 7106(a)(1) by "clearly prevent[ing]" the Agency from conducting "unannounced inspections." Statement of Position at 3. In support, the Agency relies on National Association of Government Employees, SEIU, AFL-CIO and Department of the Air Force, Scott Air Force Base, Illinois, 16 FLRA 361 (1984).

The Agency explains that many items that are sold at commissaries are "highly pilferable[]" and are "easily concealed" in purses, gym bags, and briefcases, and that the failure to control pilferage leads to higher commissary costs. Statement of Position at 3. The Agency states that a high level of security is needed and that its directive is designed "to ensure there is Agency control of store merchandise until purchased and properly taken off the commissary store premises." Id. Noting the language of the proposal limiting inspections when there is "reason to believe" a theft or unauthorized possession has taken place, the Agency states that the Union's intent is to have "reasonable suspicion" in order to inspect an employee's personal items. Id.

2. Union

The Union states that Proposal 1 is not intended to prevent an unannounced inspection of employee purses and pocketbooks as the proposal "does not address whether the inspection is announced or unannounced[.]" Response at 2. The Union adds that Proposal 1 protects the constitutional guarantee of freedom from an unreasonable search and is intended to limit searches of employee purses and pocketbooks to circumstances where the Agency has "reason to believe" or "reasonable suspicion" that theft has occurred. Id. On that basis, the Union maintains that Proposal 1 incorporates into the parties' collective bargaining agreement the reasonableness standard for searches of Government employees established by the Supreme Court in O'Connor v. Ortega, 480 U.S. 709 (1987) (Ortega). The Union also claims that the proposal is similar to proposals that were found negotiable in American Federation of Government Employees, AFL-CIO, Local 1759 and Department of Defense, Department of the Army, Headquarters, Fort McPherson, Georgia, 29 FLRA 261, 264-65 (1987) (Fort McPherson) (Proposal 2) and National Treasury Employees Union and Internal Revenue Service, Denver District, 24 FLRA 249, 253-54 (1986) (Internal Revenue Service) (Proposal 2).

Alternatively, the Union contends that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute for employees adversely affected by management's exercise of its right to determine internal security practices. The Union asserts that the proposal seeks "to provide a degree of privacy for those who carry purses or pocketbooks as they generally contain items of a highly personal nature." Response at 2.

B. Analysis and Conclusions

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 that are part of its plan to secure or safeguard its personnel, physical property, and operations against internal and external risks. See, for example, National Association of Government Employees, Locals R14-22 and R14-89 and U.S. Department of the Army Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, 45 FLRA 949, 960 (1992) (Member Talkin dissenting as to other matters) (Defense Artillery Center). 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) (Federal Bureau of Prisons). 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 pilferage, or theft, of commissary store items, it must retain the ability to conduct unannounced random inspections of personal hand-carried items as the employees exit the commissary. According to the Agency, these inspections are necessary to ensure control of store merchandise until it is purchased and properly removed from commissary store premises. We find that the Agency has established that its policy of conducting unannounced random inspections of employees' hand-carried items is linked to the stated purpose of avoiding theft at the commissary store. Consequently, the policy of unannounced random inspections of hand-carried items constitutes an internal security practice under section 7106(a)(1) of the Statute. For the following reasons, we find that Proposal 1 directly interferes with the exercise of that management right.

The Union states that Proposal 1 is designed to protect the constitutional guarantee of freedom from an unreasonable search and is intended to limit inspections of employee purses and pocketbooks to circumstances where the Agency has "reason to believe" or "reasonable suspicion[]" that theft has occurred. Response at 2. The Union maintains, in this connection, that Proposal 1 incorporates into the parties' collective bargaining agreement the reasonableness standard for searches of Government employees established by the Supreme Court in Ortega. In that case, the Supreme Court held that where a search of a Government employee is conducted pursuant to an investigation of work-related misconduct, a public employer may intrude on the constitutionally protected privacy interest of Government employees under the Fourth Amendment based on a standard of reasonableness. Id. at 725-26. Based on the language of the proposal and the Union's stated intent, which is consistent with that language, it is clear that the proposal seeks to require compliance with a constitutional standard of reasonableness.

Subsequent to the Authority's decision in Fort McPherson, in which a similar proposal was found negotiable based, in part, on its consistency with Ortega, we issued a decision in American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068, 1071 (1990), (Department of Education), rev'd as to other matters sub nom. U.S. Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158 (D.C. Cir. 1992). In Department of Education, we found that a proposal requiring an agency to exercise its rights under section 7106(a)(1) of the Statute in accordance with "external legal limitations (that is, the United States Constitution, applicable laws, rules and regulations)," directly interfered with management's rights under that section. Id. at 1076. In this case, the proposal would essentially require the Agency to exercise its rights under section 7106(a)(1) by conducting searches of purses and pocketbooks in accordance with a constitutional standard of reasonableness. As such, Proposal 1 would impermissibly subject the exercise of management's rights to an external legal limitation. Accordingly, we conclude, for the reasons more fully set forth in Department of Education, that Proposal 1 directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.

The Union's reliance on Fort McPherson and Internal Revenue Service to support its position that Proposal 1 is negotiable is misplaced. Unlike those situations, the Agency here has established that the proposal would directly interfere with section 7106(a)(1) of the Statute by limiting the Agency's ability to achieve its legitimate internal security goal of detecting theft at the commissary store. Moreover, in view of our holding in Department of Education, we will no longer follow the analytical approach in Fort McPherson to the extent it finds that a proposal is consistent with section 7106(a)(1) of the Statute if it requires that an agency exercise its rights in accordance with external legal limitations, such as standards prescribed under the U.S. Constitution.

We also find, contrary to the Union's assertion, that the proposal is not an appropriate arrangement. To determine whether a proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute, 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). Applying KANG, we find that, even assuming Proposal 1 is intended as an arrangement for employees who may be adversely affected by management's decision to conduct unannounced random searches of personal hand-carried items, the proposal would excessively interfere with management's right to determine its internal security practices.

Initially, we find that the proposal would afford certain benefits to employees. In particular, the proposal would reduce the potential for the invasion of an employee's privacy by an unannounced random inspection of purses and pocketbooks. In addition, the proposal would reduce the likelihood that employees would be disciplined as a result of being discovered with stolen commissary property following an inspection. We note, in this regard, that the Agency's directive permits the imposition of disciplinary action if an employee is discovered with stolen commissary property in his or her possession. On the other hand, the proposal would significantly affect the Agency's right to determine its internal security practices. Foremost is the fact that the Agency would be unable to conduct random inspections. As stated earlier, the Agency's policy of unannounced random inspections of personal hand-carried items is necessary to prevent theft and to ensure control of store merchandise until it is purchased. As further explained by the Agency, many of the items sold at commissaries are easily concealed in hand-carried items, such as purses. By preventing the inspection of purses and pocketbooks unless there is reason to believe that an unauthorized possession or theft has occurred, the proposal would eliminate the random selection of employees for inspections. As such, the proposal would seriously impair the Agency's ability to detect the pilfering of small and easily concealable store merchandise and, thereby, to safeguard its property.

Consequently, on balance, we conclude that the proposal's imposition of severe limitations on the Agency's authority to conduct unannounced random searches of personal hand-carried items outweighs the benefits afforded employees by the proposal. Accordingly, Proposal 1 excessively interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. See, for example, American Federation of State, County and Municipal Employees, Local 3097 and U.S. Department of Justice, Justice Management Division, 42 FLRA 412, 423-25 (1991) (proposal that would place limitations on agency's ability to conduct random drug tests found to excessively interfere with agency's right to determine its internal security practices under section 7106(a)(1)).

IV. Proposal 2

The Union shall be given the opportunity to witness compliance of each spot check conducted on bargaining unit employees.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 2 interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency asserts that in Federal Bureau of Prisons, 42 FLRA at 1300-01, the Authority stated that in determining whether notice of searches of employees' personal property constitutes a negotiable procedure the Authority will take into account any special circumstances that are revealed in the record concerning the relationship between notifying employees of searches and an agency's ability to achieve its legitimate internal security objectives. In this case, the Agency asserts that its regulation, Directive 40-19, provides for unannounced random inspections of employees' personal hand-carried items as employees exit commissary stores in order to deter the pilfering of store items. The Agency argues that "[t]o notify the [U]nion a couple of hours prior to the search takes away the very essential element of surprise to detect pilferers." Statement of Position at 4. The Agency adds that many employees other than bargaining unit employees are subject to inspection and that the presence of a Union representative at the commissary exit "would tip employees off that an inspection is being conducted." Id. Therefore, the Agency claims that by providing advance notice of the inspections, the proposal "completely nullifies" the Agency's internal security practice under section 7106(a)(1) of the Statute. Id.

2. Union

The Union states that the proposal would require the Agency to provide it with "reasonable advanced notice" of spot checks, which the Union maintains would be "a couple of hours ahead of time." Petition for Review at 1. According to the Union, requiring the Agency to provide it with an opportunity to be present at spot checks "merely modifies the procedure by which management conducts its spot checks . . . ." Response at 3. The Union recognizes that the Agency must take safeguards to prevent employees from circumventing the inspection process, but argues that a Union representative must be present at the spot checks to safeguard employees from possible abuses such as "being set up or singled out for harassment . . . ." Id. The Union claims that the proposal establishes a negotiable procedure under section 7106(b)(2) of the Statute and is similar to proposals found negotiable in Fort McPherson, 29 FLRA 261 (Proposal 3) and Internal Revenue Service, 24 FLRA 249 (Proposal 2). The Union also contends that Federal Bureau of Prisons, relied on by the Agency, is distinguishable on the basis that this case involves a commissary store and not a Federal correctional facility where special security concerns may be present. Finally, the Union asserts that the Agency's objections to the proposal are based on an argument that is more appropriately raised before the Federal Service Impasses Panel (the Panel).

B. Analysis and Conclusions

Initially, we reject the Union's assertion that the Agency's arguments regarding Proposal 2 are more appropriately raised before the Panel. In this regard, the record indicates that