48:0041(4)NG - - AFGE, Local 2143 and VA Medical Center, Boston, MA - - 1993 FLRAdec NG - - v48 p41
[ v48 p41 ]
The decision of the Authority follows:
48 FLRA No. 4
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
August 6, 1993
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), and concerns the negotiability of a single proposal relating to the use of rotating shifts for police officers.
For the reasons set forth below, we find that the proposal is nonnegotiable.
Management and the Union agree to continue our past practice of utilizing Master Contract Article 34, Section 18-Shift [C]hange & Relocation (see attached [Article 34, section 18]) to place police officers into vacant positions as they occur at the [p]olice officers [sic] request.(2)
III. Positions of the Parties
A. The Agency
As a preliminary matter, the Agency maintains that the Union has "waived [its] rights to engage in bargaining over rotating tours of duty assignments . . . ." Agency's Statement of Position at 6. In this regard, the Agency contends that, when it proposed assigning police officers to rotating rather than fixed shifts, the Union "made no demand to bargain[.]" Id. at 10. Consequently, the Agency contends that it met any "bargaining obligation it may have had over [it's] decision to adopt the rotating shift policy[,]" and that the Union's failure to request bargaining at that time "constituted a clear waiver of [its] right." Id.
Next, the Agency contends that the proposal is inconsistent with its right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency claims that, as a "part of its plan to secure or safeguard its personnel, its physical property, and its operations[,]" it initiated rotating shifts "to assure that each officer [was] provided an opportunity to work under all circumstances . . . that might occur at any medical center." Id. at 11, 12-13. The Agency contends that the policy of rotating shifts "represents a reasonable Agency effort to assure that each police officer has adequate experience to perform in the sensitive medical center environment, and, therefore, is an exercise of its right to establish internal security practices." Id. at 13. According to the Agency, because the "proposal would totally bar the Agency from making any tour of duty changes . . . without the consent of the employee[,]" it is nonnegotiable. Id.
The Agency also contends that a "decision to change the tour of duty of . . . employees is negotiable only at the election of the Agency" under section 7106(b)(1) of the Statute. Id. at 14 (emphasis omitted). In this connection, the Agency claims that, as the proposal is "designed solely to prevent" the Agency from changing Agency police officers' tours of duty, the proposal directly interferes with its right under section 7106(b)(1) of the Statute. Id. at 15. Finally, the Agency contends that the proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute because it "totally proscribe[s] the exercise of management's rights to assign employees particular tours of duty." Id. at 17.
B. The Union
The Union contends that the proposal is "a procedure affecting conditions of employment [which] is not barred by any Federal [l]aw, Government[-]wide rule or regulation . . . ." Union's Reply Brief at 1. The Union asserts that all police officers are "equally qualified to perform any of the duties and responsibilities of a [p]olice officer on any shift[,]" and that the "[p]roposal merely is a procedure to be used to allow [the Agency] to select a [p]olice officer to staff the numbers [it] determines for each shift." Id. at 2. In this regard, the Union claims that the proposal "merely requires [the Agency] to consider an employee's request to be placed into a vacant position of the same grade on another shift." Id. at 1.
The Union also contends that the proposal does not interfere with the Agency's right to determine its internal security practices. In this connection, the Union claims that the proposal permits the Agency to "staff vacancies on all shifts without employee consent [and] . . . with no interference to [the Agency's] rights to determine internal security practice[s]." Id.
IV. Analysis and Conclusions
A. Preliminary Matter
As a preliminary matter, we reject the Agency's argument that we should dismiss the Union's petition for review because the Union waived its right to bargain over the rotation policy.(3) The Authority resolves in a negotiability proceeding only issues regarding whether a disputed proposal is consistent with law, rule, or regulation. Moreover, provided the conditions for review of a negotiability issue have been satisfied, as they have been satisfied in this case, a union is entitled to a decision despite the claimed existence of additional duty to bargain issues. See National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 43 FLRA 1140, 1143 (1992). Issues concerning the duty to bargain should be resolved in other appropriate proceedings. Id.
B. Right to Determine Internal Security Practices
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 International Brotherhood of Police Officers and U.S. Department of the Army, Watervliet Arsenal, Watervliet, New York, 46 FLRA 333, 337 (1992) (IBPO/Watervliet Arsenal). Where an agency shows a link or reasonable connection between its goal of safeguarding personnel or property and protecting its operations, and its practice or decision designed to implement that goal, a proposal which directly interferes with or negates the agency's practice or decision conflicts with the agency's right to determine internal security practices. Id.; National Federation of Federal Employees, Local 1214 and U.S. Department of the Army, Headquarters, U.S. Army Training Center and Fort Jackson, Fort Jackson, South Carolina, 45 FLRA 1121, 1125 (1992).
To establish the necessary link, an agency must show a reasonable connection between its goal of safeguarding personnel or property and its practice designed to implement that goal. See IBPO/Watervliet Arsenal, 46 FLRA at 337-38. Once a link has been established, the Authority will not review the merits of the agency's plan in the course of resolving a negotiability dispute. See American Federation of Government Employees, Local 1920 and U.S. Department of Defense, Army and Air Force Exchange Service, Fort Hood Exchange, Fort Hood, Texas, 47 FLRA 340, 349 (1993); 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, 1403-04 (1991).
We conclude that the Agency has established a link between its rotational shift policy and its internal security. In this regard, we note that the Agency claims that a rotational shift policy will "assure that each officer is provided with an opportunity to work under all circumstances . . . ." Agency Statement of Position at 13. In addition, the Agency claims that the shift rotations will allow the police officers to develop "the same range of experience . . . and[,][therefore,] be equally well[-]equipped to handle any situation." Id. In our view, these claims establish the necessary link between the Agency's rotational shift policy and its internal security needs. Accordingly, we will not inquire into the merits or the effectiveness of the Agency's plan. We reject the Union's claim that the proposal "merely requires [the Agency] to consider an employee's request to be placed into a vacant position of the same grade on another shift." Union's Reply Brief at 1. The language of Article 13, Section 18 states that an employee's shift change "request will be granted if the employee has the requisite skills and abilities, provided such [a shift change] would be consistent with effective and efficient staffing." Article 34, Section 18, Attachment to Union's Reply Brief. Clearly, under the proposal, the Agency would be required, in those circumstances, to grant employee requests for shift changes even though such changes might be inconsistent with the rotation policy. Accordingly, the proposal directly interferes with the Agency's right to determine its internal security practices. As the proposal directly interferes with the Agency's right, it does not constitute a negotiable procedure. See National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, Office of Chief Counsel, Washington, D.C., 45 FLRA 429, 435 (1992).
The Union does not contend that the proposal is intended as an appropriate arrangement under section 7106(b)(3) of the Statute. Consequently, without addressing the Agency's other arguments, we conclude that the proposal is nonnegotiable. See National Association of Government Employees and U.S. Department of Veterans Affairs, Medical Center, Brockton and West Roxbury, Massachusetts, 41 FLRA 529, 534 (1991).
The petition for review is dismissed.
Member Talkin, concurring.
As I stated in my separate concurring opinion in National Guard Bureau, Alexandria, Virginia and Association of Civilian Technicians, Montana Chapter No. 29, 45 FLRA 506, 521 (1992), I cannot agree that we should not ever inquire into the relative merits or effectiveness of various options an agency may select to accomplish stated internal security objectives. In this case the Union argues that its proposal would be as effective as the shift rotation policy preferred by the Agency. However, there is not a sufficient record upon which to determine whether the Union's claim is accurate. Therefore, I concur in my colleagues' decision to dismiss the petition for review.
(If blank, the decision does not have footnotes.)
1. Member Talkin's concurring opinion is set forth at the end of this decision.
2. Article 34, Section 18 of the parties' collective bargaining agreement sets forth a procedure according to which employee requests to