49:0834(79)NG - - AAFSCME Locals 2910 & 2477 and Library of Congress - - 1994 FLRAdec NG - - v49 p834



[ v49 p834 ]
49:0834(79)NG
The decision of the Authority follows:


49 FLRA No. 79

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF STATE, COUNTY

AND MUNICIPAL EMPLOYEES

LOCALS 2910 & 2477

(Union)

and

U.S. LIBRARY OF CONGRESS

(Agency)

0-NG-2177

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

April 22, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns a single proposal which was submitted by the Union in response to the Agency's proposed regulation to require employees to wear identification cards at all times when they are in Agency buildings in an official duty status.(1) The Union's proposal would require employees to wear identification cards only when the employees are in nonpublic areas of Agency buildings.

For the following reasons, we find that the proposal is nonnegotiable because it directly and excessively interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.

II. Proposal

Members of the Library Staff are required to wear their identification cards at all times when in non-public areas of the Library.

III. Positions of the Parties

A. Agency

The Agency contends that the proposal conflicts with its right, under section 7106(a)(1) of the Statute, to determine its internal security practices. The Agency states that, as a part of its proposed security regulations, it determined that "[m]embers of the Library staff are required to wear visibly their identification cards at all times when in the Library's buildings in official duty status." Statement, Exhibit 1--Draft Library of Congress Regulations (LCR) 1811, Section 3 (May 11, 1993).(2) The Agency asserts that identification cards help to protect the Agency's property and personnel, employees' personal property, and the Agency's collections by "assuring that only authorized persons shall be in the buildings before and after the hours of public opening and that only authorized persons shall be in nonpublic portions of the building during the hours of public opening." Id. at Section 1.

The Agency notes that additional security measures are required because "[o]ver the years, the [Agency] has detected a growing number of crimes against its collections." Statement, Exhibit 2 at 1. The Agency also notes that "[t]hefts of personal property by brazen intruders in offices and work areas have been an ongoing problem." Id. at 3. Specifically, the Agency claims that the visible wearing of identification cards throughout all Agency buildings at all hours: (1) enables Agency "police and other staff members to spot persons in areas where they are not authorized to be"; (2) identifies "who is authorized to do certain things, e.g., only [Agency] staff are authorized to transport collections materials outside the reading rooms, stacks, and processing areas"; (3) has a "deterrent effect on would-be criminals whose presence or activities would, without an identification card, draw attention to themselves"; (4) identifies Agency staff for the public "who may wish to seek directions or other assistance"; and (5) "provide[s] reassurance or, if no identification is visible, reason for caution to staff members encountering persons not known to them at odd hours or in isolated locations or circumstances (e.g., elevators, corridors, or work areas where no other person is present)." Id. The Agency states that it is impractical to limit its identification cards policy to only the nonpublic areas of the Agency because, to safeguard Agency and staff property and to enforce its security policies, "it is critical for [Agency] staff charged with the responsibility for security[] to readily identify individuals transporting material through . . . 'public' spaces as authorized to do so[.]" Statement, Exhibit 5 at 2.

The Agency asserts that the Union's proposal would nullify the Agency's identification cards policy as it applies to the public areas of its buildings and, to the extent that it applies to the nonpublic areas, would not require employees to wear the cards "visibly." Statement at 6 (emphasis omitted). The Agency notes that, as explained by the Union, the proposal does not require employees to wear their identification cards while in "the cafeteria, hallways and other public areas." Petition at 1. According to the Agency, other public areas would include tunnels connecting buildings, reading rooms, and adjacent areas. Moreover, the Agency argues that the Union's stated intent would permit employees, while in nonpublic areas of the Agency, to carry their identification cards concealed in their pockets or purses and would only require employees to produce them upon the request of a responsible Agency official or the Agency police.

Citing American Federation of Government Employees, AFL-CIO, Local 15 and Department of the Treasury, Internal Revenue Service, North Atlantic Region, 2 FLRA 875 (1980) (IRS, North Atlantic Region), the Agency claims that proposals that require an agency to negate or reverse its policy directing employees to wear identification cards visibly or, alternatively, require that employees only carry them and produce them, if challenged, violate the agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.

The Agency also claims that the proposal is nonnegotiable because it interferes with the Agency's right to determine the methods and means of performing work in violation of section 7106(b)(1) of the Statute.

B. Union

The Union states that the proposal would require employees to wear their identification cards when they are in the stacks or other nonpublic areas of the building, but would not require employees to wear their identification cards "in the cafeteria, hallways and other public areas." Petition at 1. The Union claims that the Agency misunderstood its statements regarding the intent of its proposal. The Union states that it "did not intend that the identification cards should be merely carried and not visibly displayed" in the nonpublic areas. Opposition at 3-4. Rather, the Union explains that it intended the cards to be worn visibly in nonpublic areas, "with the option of carrying [the cards] in a pocket or purse in the public areas only." Id. at 4.

The Union claims that the Agency has not shown a rational relationship between the measure imposed by management and the security objectives of the Agency. Specifically, the Union asserts that the "mission and security of the Library of Congress will not be harmed [by negotiating over the proposal] in light of the existing security measures such as exit searches and stack passes." Id. at 4. The Union argues that "the identification of staff and non-staff visitors in the [Agency's] public and non-public areas is of little consequence in light of the security measures imposed at the exits of the [Agency's] buildings." Id. at 3 (citations omitted). Accordingly, the Union claims that "the wearing of [identification] cards in the public areas will not reasonably further the interest of safeguarding the [Agency's] collections." Id. The Union claims that the Agency did not specify the need to identify employees in public areas until the filing of its statement of position. The Union asserts that the Agency's argument is not rationally related to its stated objectives for requiring employees to wear identification cards because the Agency's description of its objective, as set forth in Draft LCR 1811, is limited to the nonpublic areas.

The Union also contends that its proposal is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. The Union claims that employees will be adversely affected by management's policy because, under the Agency's proposal, "the failure to carry a badge in public areas could result in being written up, and ultimately, in disciplinary action." Id. at 4. The Union also claims that the proposal meets the Agency's stated purpose of "ready identification of persons in the nonpublic areas[.]" Id. On balance, the Union claims that its proposal advances both the employees' and the Agency's interest because it will permit, as the Agency initially proposed, employees to have visible identification in all nonpublic areas.

IV. Analysis and Conclusions

A. Preliminary Matter

We note the Union's claim that, in making its internal security practice arguments in its statement of position, the Agency: (1) "attempts to articulate a reason for requiring the wearing of [identification cards] in public areas, when its description of its objective [for requiring the cards] is set forth in its original documents and is limited to" nonpublic areas; and (2) "previously did not specify any need to identify employees in public areas." Opposition at 3 n.2, 4. To the extent that the Union is contending that the Agency may not make, in its statement of position, arguments concerning the nonnegotiability of the proposal that it had not made prior to filing its statement of position, we reject that contention. There is no requirement in the Statute or the Authority's implementing Rules and Regulation that an allegation of nonnegotiability must be made with any particular degree of specificity. See 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). The only requirement that an agency support its allegation of nonnegotiability with specificity and rationale occurs 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 id. See also 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 1213, 1214 (1992) (Member Armendariz concurring in part and dissenting in part as to other matters). Accordingly, we will consider the internal security rationale articulated by the Agency in its statement of position.

B. Meaning of Proposal

By its plain wording, the proposal requires employees to wear their identification cards at all times while in nonpublic areas of the Agency. We find that the plain terms of the proposal do not allow employees to conceal their identification cards in pockets or purses when they are in nonpublic areas of the Agency. Consequently, we reject the Agency's claim that the proposal would preclude management from requiring employees to wear their identification cards so that they are visible when employees are in nonpublic areas.

However, we note that the proposal does not require employees to wear identification cards while in public areas of the Agency. The Union and the Agency agree that the proposal is intended to prevent the Agency from requiring employees in official duty status to wear their identification cards visibly while the employees are in public areas of the Agency. We adopt this interpretation of the proposal.

C. The Proposal Directly Interferes with the Agency's Right to Determine Its Internal Security Practices

Under section 7106(a)(1) of the Statute, management's right to determine its internal security practices includes the right to determine the policies and practices that are necessary to safeguard its personnel, physical property, and operations against internal and external risks. See American Federation of Government Employees, Local 2143 and U.S. Department of Veterans Affairs, Medical Center, Boston, Massachusetts, 48 FLRA 41, 44 (1993) (Member Talkin concurring as to other matters); National Treasury Employees Union, Chapter 82 and U.S. Department of the Treasury, Internal Revenue Service, Martinsburg Computer Center, Martinsburg, West Virginia, 45 FLRA 254, 259 (1992) (IRS), petition for review denied, 10 F.3d 13 (D.C. Cir. 1993) (mem.). Where an agency demonstrates a link or a reasonable connection between its goal of safeguarding its personnel, property, or operations and its practice or decision designed to implement that goal, a proposal that directly interferes with or negates the agency's practice or decision conflicts with the agency's right under section 7106(a)(1) of the Statute. 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, 348 (1993) (Army and Air Force Exchange Service); IRS, 45 FLRA at 259. We will not examine the extent to which the practices adopted by management to achieve its security objectives actually facilitate the accomplishment of those objectives. See Army and Air Force Exchange Service, 47 FLRA at 349.

We conclude that the Agency has established a link between its requirement that employees in an official duty status wear identification cards visibly at all times when they are in public areas of the Agency and its internal security concerns. We note that the Agency claims that its identification card policy is an important aspect of its efforts to provide security in its buildings because the benefits of the requirement extend not only to the protection of Government and private staff property, but also to the safety of staff members and visitors. Additionally, we note that the Agency claims that the requirement enables Agency police and other staff members to identify who is authorized to perform certain Agency functions in public areas which affect the safekeeping of its property--for example, who is allowed to transport collections materials outside of the reading rooms, stacks, and processing areas--and has a deterrent effect on would-be criminals whose presence or activities would, without an identification card, draw attention to themselves. We also note that the Agency claims that the requirement safeguards members of the public who may wish to seek directions or other assistance by readily identifying Agency staff and provides reassurance or, if no identification is visible, reasons for caution to staff members encountering persons not known to them at odd hours or in isolated locations or circumstances--for example, in public elevators, corridors, and other public spaces such as tunnels connecting buildings, reading rooms, and adjacent spaces, particularly when no other person is present. The Union does not challenge these claims. Rather, the Union contends that security measures already in place are sufficient protection.

In our view, the Agency's claims establish the necessary link between its identification card policy and its internal security needs in the public areas of the Agency's buildings. We conclude, therefore, that the Agency's decision to require employees in an official duty status to wear identification cards visibly when in public and nonpublic areas of the Agency's buildings constitutes a determination of its internal security practices within the meaning of section 7106(a)(1) of the Statute. Consequently, we reject the Union's claim that the Agency has not established the threshold requirement of a link between its proposed identification card policy for employees working in the public areas of its buildings and the security interests it seeks to protect.

As the Union concedes, the proposal would nullify the Agency's determination that employees, in an official duty status, will wear their identification cards visibly when in public areas of the Agency's buildings. In these circumstances, the proposal would have the same effect as the proposal at issue in IRS, North Atlantic Region. In IRS, North Atlantic Region, the Authority held that a proposal that limited management's ability to require employees to wear and visibly display identification cards at all times directly interfered with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. Consistent with IRS, North Atlantic Region, we find that, by precluding management from requiring employees, when in an official duty status, to wear their identification cards visibly in the public areas of the Agency's buildings, the proposal directly interferes with management's right to determine its internal security practices.

D. The Proposal Does Not Constitute an Appropriate Arrangement

Having found that the proposal directly interferes with management's right to determine its internal security practices, we next consider the Union's claim that the proposal is nevertheless negotiable as an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (KANG), the Authority established an analytical framework for determining whether a proposal constitutes an appropriate arrangement. First, we determine whether the proposal constitutes an arrangement for employees adversely affected by the exercise of a management right. To do this, we ascertain whether the proposal in question seeks to address, compensate for, or prevent adverse effects on employees produced by the exercise of management's rights. See National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176, 183 (1994) (Member Armendariz concurring in part and dissenting in relevant part). Second, if we conclude that the proposal is an arrangement, we then determine whether the proposal is appropriate or inappropriate because it excessively interferes with the exercise of a management right. We make this determination by weighing "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.

Here, even assuming that the proposal constitutes an arrangement, we conclude that it is nonnegotiable because it excessively interferes with the Agency's right to determine its internal security practices. As to the benefits afforded employees, the Union contends that the proposal would insulate employees from the adverse effects of failing to wear their identification cards in public areas of the Agency. The Union explains that employees who fail to wear their identification cards when and where they are supposed to wear them are subject to receiving a letter of warning and, ultimately, disciplinary action. Based on the Union's explanation and the wording of the proposal, we find that the proposal is intended to benefit employees by preventing the Agency from disciplining them for failing to wear their identification cards visibly when in a duty status in public areas of the Agency's buildings.

However, we find that the benefit provided to employees by the proposal is outweighed by the burden that the proposal imposes on the Agency's ability to protect its property, the property of its staff, and Agency personnel and visitors. The Agency states that requiring employees to wear their identification cards visibly when in public areas of its buildings enables it to better protect Government and private staff property and ensure the safety of its staff and visitors. In particular, the Agency notes that the requirement enables it to readily identify employees who are authorized to transport collection items through public hallways, corridors, and tunnels connecting buildings, and to identify its staff in public reading rooms and adjacent work areas which may also be considered public. The Agency claims that responsible Agency staff engaged in the security of its collections and property must be able to determine who in these public areas is authorized to use and/or transport these materials.

The proposal would preclude the Agency from requiring employees, in an official duty status, to wear their identification cards visibly at all times when in the public areas of its buildings. While the Union contends that this security measure is of little consequence in light of other security measures imposed at the entrances and exits of the Agency's buildings, the Union has not shown that the security measures imposed at the entrances and exits address the full range of security concerns served by the Agency's policy of requiring the wearing of identification cards visibly at all times during which employees are on duty in the public and nonpublic areas of its buildings. For example, the Union has not shown that the security measures employed at the entrances and exits to the buildings address the Agency's concerns as to the identification of persons transporting and handling the Agency's collections and property while in public areas of the Agency or as to persons encountered at odd hours or in isolated locations of the public areas of its bu