52:0332(31)NG - - AFGE, Local 3824 and Energy, Western Area Power Administration, Phoenix, AZ - - 1996 FLRAdec NG - - v52 p332
[ v52 p332 ]
The decision of the Authority follows:
52 FLRA No. 31
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF ENERGY
WESTERN AREA POWER ADMINISTRATION
DECISION AND ORDER ON NEGOTIABILITY ISSUES
September 30, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
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). At issue are four proposals concerning the storage and destruction of records generated by a call-recording device the Agency installed on its telephone system.(1) For the following reasons, we find that Proposals 1, 2, and 3 are outside the duty to bargain because they affect management's right to determine its internal security practices under section 7106(a)(1) of the Statute. We find that Proposal 4 is within the duty to bargain.
II. The Proposals
Proposal 1. After each monthly billing cycle when the data has been matched by Headquarters and the bills resolved, Headquarters will destroy the data, wherever it is stored. This data or any data bases created from this information will not be backed up, stored or archived in such a way to allow for later retrieval or use of this information.
Proposal 2. The data on the disc sent to Headquarters will be destroyed so it can not be later retrieved.
Proposal 3. A disc of the phone call records is sent to Headquarters for comparison. Once it is known the information on the disc has reached Headquarters in good condition, the Local [Phoenix Area Office] information records of the calls stored on the Harris switch or elsewhere will be destroyed.
Proposal 4. The Union retains the right to monitor the data collection and verification processes at any time.
III. The Agency's Position (2)
The Agency, without elaboration, claims that Proposals 1, 2, and 3 are outside the duty to bargain because they: do not affect conditions of employment within the meaning of sections 7102(2) and 7103(a)(14) of the Statute; are inconsistent with section 101-2.106 of the Federal Property Management Regulations;(3) are inconsistent with Agency regulations implementing section 101-2.106 of the Federal Property Management Regulations;(4) and affect management's right under section 7106(a)(1) of the Statute to determine its internal security practices. The Agency challenges Proposal 4 solely on the ground that it does not affect conditions of employment.
IV. Analysis and Conclusions
A. The Proposals Affect Conditions of Employment of Unit Employees; Proposal 4 Is Within the Duty to Bargain
In determining whether a proposal affects conditions of employment, we consider 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, 236-37 (1986) (Antilles). There is no dispute that the proposals at issue before us pertain to unit employees. Accordingly, we consider only the second prong of the test. See, e.g., Department of Veterans Affairs, Medical Center, St. Louis, Missouri and American Federation of Government Employees, Local 96, 50 FLRA 378, 380 (1995).
The Authority has held that a proposal concerning records generated by an agency's security system affects conditions of employment where the records can be used to administer and enforce rules covering unit employees, thereby satisfying the second prong of Antilles. See American Federation of Government Employees, AFL-CIO, Local 2782 and U.S. Department of Commerce, Bureau of the Census, Washington, D.C., 49 FLRA 470, 478 (1994) (USDC) (holding that proposal seeking records generated by card-key security system and used to enforce rules governing access to the agency's premises affected conditions of employment). Like the records sought in USDC, the reports generated by the Agency's call-recording device are used to enforce rules covering unit employees. The Agency, among other things, uses the reports "to verify that employee calls were for official business" and to "[i]nitiate appropriate disciplinary action when abuse or willful violations have occurred." Statement of Position, Attachment 4 at 11. The proposals concern these reports and, therefore, affect conditions of employment within the meaning of section 7103(a)(14) of the Statute. See USDC, 49 FLRA at 478.
As the Agency challenges Proposal 4 solely on the ground that it does not affect conditions of employment, we conclude that Proposal 4 is within the duty to bargain under section 7117 of the Statute.
B. Proposals 1, 2, and 3 Are Not Inconsistent With a Government-Wide Regulation
Under section 7117(a)(1) of the Statute, the duty to bargain does not extend to proposals that are inconsistent with a Government-wide regulation. E.g., National Association of Government Employees, Local R12-40 and Federal Union of Scientists and Engineers, Local R12-198 and U.S. Department of the Navy, Naval Ship Weapon Systems Engineering Station, Port Hueneme, California, 36 FLRA 168, 170 (1990).
The regulation at issue, 41 C.F.R. § 101-2.106 (1995), is a Government-wide regulation within the meaning of the Statute. See U.S. Department of Health and Human Services, Social Security Administration, Chicago, Illinois and American Federation of Government Employees, Local 1395, 34 FLRA 1107, 1111 (1990). Section 101-2.106 directs agencies to "establish controls over the use of telephones adequate for ensuring that long distance telephone calls are made only when they are the most economical and practicable means of communications available for [transacting] Government business." However, this section is silent with respect to the maintenance or destruction of records generated by efforts to comply with the regulation and, therefore, leaves these matters to the agencies' discretion. See American Federation of Government Employees, AFL-CIO, Local 2782 and U.S. Department of Commerce, Bureau of the Census, 48 FLRA 1224, 1226 (1993).
Proposals 1, 2, and 3 call for the monthly destruction of records generated by the call-recording device. As such, they are not subject to any express prohibition contained in the regulation; rather, they fall within the discretion left to the Agency by the regulation. Under these circumstances, and as there is no claim that the Agency's discretion is sole and exclusive, we find that the proposals are not inconsistent with the regulation. See American Federation of Government Employees, Local 644, AFL-CIO and U.S. Department of Labor, Occupational Safety and Health Administration, 21 FLRA 658, 663-65 (1986) ("[T]o the extent that the Agency has discretion to carry out the general requirement of [the] proposals . . ., they are within the duty to bargain.").
C. Proposals 1, 2, and 3 Are Not Inconsistent With an Agency-Wide Regulation for Which There Is a Compelling Need
In order to demonstrate that a proposal is outside the duty to bargain because it conflicts with an agency regulation, an agency must: (1) identify a specific agency-wide regulation; (2) show that there is a conflict between its regulation and the proposal; and (3) demonstrate that its regulation is supported by a compelling need within the meaning of section 2424.11 of the Authority's Regulations. Coordinating Committee of Unions and Department of the Treasury, Bureau of Engraving and Printing, 29 FLRA 1436, 1441 (1987).
Here, the Agency has made no claim that the regulation on which it relies is supported by a compelling need. Therefore, we find that the Agency has failed to demonstrate that Proposals 1, 2, and 3 are outside the duty to bargain on this ground. See id. at 1441.
D. Proposals 1, 2, and 3 Affect Management's Right to Determine Its Internal Security Practices
Under section 7106(a)(1) of the Statute, an agency's right to determine its internal security practices includes the authority to determine the policies and practices that are necessary to safeguard its personnel, physical property, or operations against internal and external risks. Where an agency demonstrates a reasonable connection between its goal of safeguarding its personnel, property or operations and the technique designed to implement that goal, a proposal that conflicts with the selected technique affects the agency's section 7106(a)(1) right. American Federation of Government Employees, Federal Prison Council 33 and U.S. Department of Justice, Federal Bureau of Prisons, 51 FLRA 1112, 1115 (1996) (Federal Bureau of Prisons).
According to the Agency, its goal is "to protect government resources and equipment from abuse and misuse." Statement of Position at 6. In order to effectuate this goal, the Agency developed a technique for compiling and perusing records of long-distance calls made by Agency employees. Clearly, a reasonable connection exists between the goal and the technique. See American Federation of Government Employees, Local 1164 and U.S. Department of Health and Human Services, Social Security Administration, Lynn, Massachusetts, 35 FLRA 1193, 1197 (1990) (finding reasonable connection between agency's goal of safeguarding property and its investigation of suspected misuse of telephone system).
In addition, the record reveals that Proposals 1, 2, and 3 conflict with specific components of the Agency's call-monitoring technique. For instance, the Agency's technique calls for "[telephone] [u]sage [to] be analyzed for patterns of abuse." Statement of Position, Attachment 4 at 8. Identification of patterns, as contrasted with identification of instances, of abuse would require comparison of records generated over a period of months. Proposals 1, 2 and 3 call for the Agency to destroy its telephone records "[a]fter each monthly billing cycle[.]" Petition at 1. If the Agency destroyed its telephone records each month in accordance with Proposals 1, 2, and 3, then it would be unable to analyze the records for patterns of abuse. In this way, the proposals conflict with the Agency's selected technique for safeguarding resources and, as such, affect the right accorded the Agency by section 7106(a)(1) of the Statute. See, e.g., Federal Bureau of Prisons, 51 FLRA at 1115-16.
The Union does not contend that the proposals are intended as procedures or appropriate arrangements under sections 7106(b)(2) or (3) of the Statute. Accordingly, we conclude that Proposals 1, 2, and 3 are outside the duty to bargain because they affect management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
V. Decision and Order
The petition for review is dismissed as to Proposals 1, 2, and 3. The Agency shall upon request, or as otherwise agreed to by the parties, negotiate over Proposal 4.(5)
(If blank, the decision does not have footnotes.)
1. The records concern long-distance telephone calls made by Agency personnel and include the following information: the telephone number placing the call; the telephone number called; the long-distance route used; and the start time, length, and date of each call.
2. In its petition for review, the Union did not state grounds for, or make arguments supporting, a finding that the proposals are within the duty to bargain. The Union also did not file a reply brief.
3. Section 101-2.106 of the Federal Property Management Regulations, codified at 41 C.F.R. § 101-2.106 (1995), states in pertinent part:
[E]ach agency head shall be responsible for establishing controls over the use of telephones adequate for ensuring that long distance telephone calls are made only when they are the most economical and practicable means of communications available for transaction of Government business. Such controls should also ensure that commercial telephone facilities are used only when Government-owned or -leased facilities are not available or when commercial telephone facilities are more economical than Government-owned or -leased facilities . . . . Agencies are responsible for establishing an adequate followup system to determine if any toll charges were unofficial or uncertifiable.
4. Agency regulations implementing section 101-2.106 of the Federal Property Management Regulations appear in sections 6(g) and (h) of Department of Energy Order No. 1450.3A. These sections state:
6(g). DOE will establish call control/verification programs which provide proper management controls over Government-provided and commercial long-distance services[.]
6(h). DOE will utilize call detail records to implement call control/verification programs, ensuring that call detail records are properly safeguarded and managed in accordance with the Privacy Act.
Statement of Position, Attachment 4 at 4.
5. In finding Proposal 4 to be within the duty to bargain, we make no judgment as to its merits.