Department of the Treasury, United States Customs Service, El Paso, Texas and National Treasury Employees Union, Chapter 143 and Department of the Treasury, United States Customs Service, New Orleans, Louisiana and National Treasury Employees Union, Chapter 168

[ v55 p43 ]

55 FLRA No. 16

DEPARTMENT OF THE TREASURY
UNITED STATES CUSTOMS SERVICE
EL PASO, TEXAS
(Respondent)
and
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 143
(Charging Party)

AND

DEPARTMENT OF THE TREASURY
UNITED STATES CUSTOMS SERVICE
NEW ORLEANS, LOUISIANA
(Respondent)
and
NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 168
(Charging Party)

DA-CA-60047 and DA-CA-60048

_____

DECISION AND ORDER

December 31, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I.     Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent.

      The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by initiating the video tape recording of employee interviews during Internal Affairs (IA) investigations at two of Respondent's facilities without providing the Union with notice and an opportunity to bargain over the change in conditions of employment. The Judge concluded that the Respondent had violated the Statute as alleged.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision. [ v55 p44 ]

II.     Background and Judge's Decision

A.     Background

      The facts are fully set forth in the Judge's decision, and are only briefly summarized here. The Union is the exclusive representative of a nationwide bargaining unit of Respondent's employees. In June 1980, the parties entered into a collective bargaining agreement (Agreement) that gave employees the right to receive a verbatim transcript of any interview for which a "tape recording" or stenographic record was made. Judge's Decision at 3; G.C. Exhibit 8. This provision remained part of the Agreement when the parties renegotiated in 1983 and 1987, although the parties added language to preserve an employee's privacy rights concerning such interviews. In 1991, the parties again amended the Agreement to permit the Respondent to deny disclosure when permitted by law to protect the integrity of the investigation.

      It is undisputed that when the parties originally drafted the Agreement in 1980, the reference to tape recording denoted audio tape recording. The Respondent first acquired video recording equipment in 1990 and thereafter used it to videotape employee interviews in Texas as early as 1992 without the Union's knowledge. [n1] 

      On September 20, 1995, a Union representative questioned the absence of the usual microphones at a unit employee's interview in El Paso, and learned from an IA agent that the Respondent was videotaping the interview. At about the same time, another Union representative learned that the Respondent had videotaped an interview in New Orleans. The Union representative called the Chapter President, who brought the matter to the attention of the Respondent's Center Director.

      At the next bargaining session in October 1995, the Union raised the issue of the videotaping. The parties reached a tentative agreement that permitted the Respondent to videotape, but also afforded employees the right to request a copy of the recording. However, the Respondent ultimately disapproved this tentative agreement, and it was not made part of the parties' final Agreement.

      On October 30, 1995, the Union filed two unfair labor practice charges concerning the Respondent's videotaping of employee interviews in El Paso and New Orleans, respectively. Thereafter, the General Counsel issued a consolidated complaint alleging that the Respondent violated section 7116(a)(1) and (5) of the Statute by implementing the decision to videotape interviews of bargaining unit employees conducted by IA agents without notifying and bargaining with the Union to the extent required by the Statute.

B.     Judge's Decision

      At the hearing, the Respondent conceded that it unilaterally implemented the practice of videotaping employees, but maintained that the charges were untimely and that the matter was already "covered by" the parties' Agreement. The Respondent claimed to have commenced videotaping as far back as 1992. Further, the Respondent asserted that, in 1993, the Union filed an unfair labor practice charge over the Respondent's videotaping of an interview involving another Union Chapter President in Brownsville, Texas.

      The Judge found that the Union's 1993 unfair labor practice charge pertained to the allegedly coercive tactics used by the Respondent to elicit information from the Brownsville Chapter President regarding private conversations that took place during representational activities and had nothing to do with videotaping. [n2]  The Judge further noted that although the Union requested information regarding videotaping that occurred in El Paso and New Orleans, those requests were not made until after the charges in this case were filed. The Judge found credible the testimony of the Union's national officers denying knowledge of such incidents until late 1995. In the Judge's view, the surprise expressed by both Union and management representatives concerning the 1995 videotaping supported a finding that the Union at the national level first learned of the videotaping in October 1995.

      The Judge also rejected the Respondent's argument that the matter was "covered by" the Agreement. Citing the three-pronged test set forth in Department of Veterans Affairs Medical Center, Denver, Colorado and Veterans Canteen Service, Denver, Colorado, 52 FLRA 16 (1996) (VAMC, Denver), the Judge found that the express language of the Agreement did not cover the [ v55 p45 ] issue of videotape recording, that the practice was not inseparably bound up with the Agreement, and that it was not the parties' intent that the practice be part of the Agreement.

      In reviewing the record evidence, the Judge concluded that the parties did not contemplate videotaping when they added the provision for tape recording to their Agreement. The Judge also rejected the argument that the practice was a matter of internal security within the meaning of section 7106(a)(1) of the Statute. The Judge found that the use of videotaping to record employee interviews is not a management right. The Judge distinguished videotaping of employee interviews from covert video surveillance, which he considered an established management right.

      Finally, the Judge concluded that even if the Authority were to find that it was a management right to videotape employee interviews during IA investigations, the Respondent would still have to engage in impact and implementation bargaining with the Union over this practice, since the change had more than a de minimis impact on the employees' conditions of employment.

      The Judge ordered the Respondent to cease and desist from videotaping employee interviews until it has given the Union notice and an opportunity to bargain over the matter to the extent required by the Statute. The Judge also ordered the Respondent to provide the Union and the employees in question with copies of the tapes, discuss the tapes with the Union at the Union's request, give notice to the Union of all future videotape recordings, and post a notice at the affected worksites.

III.     Positions of the Parties

A.     Respondent

      First, the Respondent claims that the 1993 videotapings in south Texas put the Union on notice of the practice, thus rendering the Union's unfair labor practice charges in this case untimely.

      Second, the Respondent contends that the Judge erroneously applied case law in finding that the matter in question is not covered by the parties' Agreement. The Respondent argues that a party need only establish that any of the general topics that involve the matter in question is covered by the contract. In the Respondent's view, the Judge "inappropriately compared the differences between the words `tape record' and `video tape record' from an outdated 1971 dictionary." Exceptions at 3. The Respondent maintains that tape recording, by its very definition, includes videotaping. The Respondent claims that it is impossible to include all conceivable matters in a labor contract. The Respondent cites U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004, 1018 (1993) (SSA), in which the Authority found no duty to bargain over union proposals that were "inseparably bound up with" the parties' agreement, to support its position that the videotaping of employee interviews by IA is similarly "covered by" the Agreement.

      According to the Respondent, the question is whether the matter at issue "is so commonly considered to be an aspect of the matter set forth in the provision that the negotiations are presumed to have foreclosed further bargaining over the matter, regardless of whether it is expressly articulated in the provision." Exceptions at 3-4. The Respondent argues that when the national collective bargaining agreement was negotiated in 1990, videotape recordings were already commonplace. Thus, the Respondent claims that it is reasonable to conclude that videotape recordings were contemplated by the parties during negotiations.

      Finally, the Respondent asserts that the practice of videotape recording employee interviews is a matter of internal security under section 7106(a)(1) of the Statute, and is thus exempt from the Respondent's duty to bargain in good faith. The Respondent contends that, as a law enforcement entity, the decision to videotape goes to internal security, and is a management right. The Respondent claims that the Judge misconstrued the decision of the Federal Labor Relations Council in American Federation of Government Employees, AFL-CIO, Local 1592 and Army-Air Force Exchange Service, Hill Air Force Base, Utah, 6 FLRC 612 (1978) (Hill Air Force Base), and section 7106(a)(1) of the Statute in determining that the practice of videotaping employees during IA interviews is not an internal security practice.

B.     General Counsel

      The General Counsel did not file an opposition to the Respondent's exceptions.

IV.     Analysis and Conclusions

A.      The Charges Were Timely

      Section 7118(a)(4)(A) of the Statute requires that a charge be filed within six months of the alleged unfair labor practice. The charge must be "based on events occurring within the six-month period preceding the original charge[.]" U.S. Penitentiary, Florence, Colorado, 53 FLRA 1393, 1402 (1998). At times, however, [ v55 p46 ] a charging party may not learn of an alleged unfair labor practice immediately, either due to a respondent's failure to perform a duty owed to the charging party or because of the respondent's concealment of the alleged unfair labor practice. In such circumstances, section 7118(a)(4)(B) of the Statute permits the General Counsel to issue a complaint when the charging party has filed an unfair labor practice charge within six months of discovery of the alleged unfair labor practice. See U.S. Department of the Air Force, Williams Air Force Base, Chandler, Arizona, 38 FLRA 549, 560-61 (1990) (failure of agency to provide union with notice of change in working conditions warranted suspension of six month filing deadline for unfair labor practice charge), cited with approval in Air Force Accounting and Finance Center, Lowry Air Force Base, Denver, Colorado, 42 FLRA 1226, 1237-38 (1991).

      Here, the Respondent argues that the 1993 incident in Brownsville, Texas, precludes the Union from challenging in 1995 a perceived change in conditions of employment at the national level. However, the Respondent itself failed to provide either the Union's national office or the Union's designated regional representative with notice and an opportunity to bargain over this change, as required by the parties' agreement. Accordingly, the charge is timely as long as it was filed within 6 months after the Union received notice or discovered the change in working conditions.

      We adopt the Judge's conclusion that the Union filed its unfair labor practice charges within six months of discovery by the Union's national and/or regional officers that the Respondent was videotaping employees during IA interviews. The Judge properly found, based largely on his credibility determinations, which are not disputed, that the Union did not know of any videotaping incidents until late 1995. Judge's Decision at 11-12. He similarly found that the record contained no evidence that local Union representatives (who were not authorized by the parties' agreement to receive notice of changes in conditions of employment) knew about the new practice of videotaping employee interviews. [n3]  Even the Union's information request, which mentions videotapes, does not serve to call the Judge's findings into question, because the information request was drafted after the charges in this case were filed. Moreover, the Judge's finding with reference to "the surprise on the part of all members, management and [Union], of the national bargaining team[,]" when informed in October 1995 that employee interviews were being videotaped, supports his conclusion that the Union's national officers first learned of the videotaping in October 1995. Id. at 11.

      In summary, we conclude that the Union's unfair labor practice charge in this case was filed in a timely manner. Accordingly, we deny the Respondent's exception in this regard.

B.      The Video Tape Recording of Employees During Internal Affairs Investigations is not "Covered by" the Parties' Agreement

      The Judge properly applied Authority precedent in reaching his conclusion that the matter in question is not "covered by" the parties' agreement. In VAMC, Denver, the Authority restated its three-pronged test for determining whether a particular change in conditions of employment is "covered by" the existing collective bargaining agreement between the parties. First, the Authority looks to the "express language" of the agreement to ascertain whether it reasonably encompasses the subject in dispute. SSA, 47 FLRA at 1018. Next, the Authority looks to whether the subject in dispute is "inseparably bound up with . . . a subject expressly covered by the contract." Id. (citing C & S Industries, Inc., 158 NLRB 454, 459 (1966)). If neither of these steps leads to the conclusion that further negotiations on the subject are foreclosed, the Authority proceeds to the third step of the analysis, which is to examine the parties' intent. Navy Resale Activity, Naval Station, Charleston, South Carolina, 49 FLRA 994, 1002 (1994). In applying this three-pronged test, the Authority will examine all the record evidence, including the parties' bargaining history, to determine whether the parties knew or should have known that the agreement would preclude further negotiations regarding the disputed subject matter. SSA, 47 FLRA at 1019. See also, U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C., 51 FLRA 1274, 1277 (1996).

      We agree with the Judge's conclusion that the express language of the parties' agreement does not address videotaping because "video" is not mentioned and the term "tape recording" covered only audio taping when the parties negotiated the provision in 1980. Moreover, we conclude that in the circumstances of this case, videotaping is not inseparably bound up with and plainly an aspect of audio tape recording. The technology and purposes of the two are different; the Agency had just acquired but had not used videotape equipment [ v55 p47 ] to record employee interviews even at the point that the parties re-negotiated their agreement in 1990; and, while not conclusive, the parties finally negotiated and tentatively agreed upon the use of videotape equipment for the first time in 1995.

      With regard to the third prong of the VAMC, Denver test, we have reviewed the Judge's findings concerning the parties' bargaining history and conclude, as did the Judge, that the parties did not contemplate videotaping when the provision relating to tape recording was added to the Agreement. The Judge's reliance upon a dictionary from the 1970's suggests that he wished to ascertain the meaning of the phrase "tape-recording" at the time that the parties introduced this language into their Agreement. For eleven years following the inclusion of the term "tape-recording," the Respondent did not possess video recording equipment; thus, that provision of the Agreement referred solely to audio recording. Moreover, although the Respondent did have video recording capability when the Agreement was renegotiated in 1991, there was no amendment to the Agreement indicating that the parties had changed the meaning of the reference to tape-recording. The Judge's factual finding in this regard is supported by a preponderance of the record evidence. See Air Force Materiel Command, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 53 FLRA 1092, 1093 (1998) (Authority looks to whether "the Judge's factual findings and the record as a whole" support the Judge's conclusions). Our review of the record supports the Judge's determination. For this reason, we adopt the Judge's finding that the disputed matter was not "covered by" the Agreement.

C.     The Video Tape Recording of Employees During Internal Affairs Investigations May Be but Is Not Necessarily an Internal Security Practice under Section 7106(a)(1) of the Statute

      Section 7106(a)(1) of the Statute provides, in relevant part, that management has a right to determine the internal security practices of the agency. This right includes the policing of its own employees. United States Department of Defense, Department of the Army, McAlester Army Ammunition Plant, 20 FLRA 606, 632-33 (1985) [n4]  (quoting Hill Air Force Base, 6 FLRC at 619-20).

      Neither the Judge nor the parties cited any case in which the Authority has decided whether the videotaping of employee interviews constitutes an internal security practice. However, in the context of union proposals relating to polygraph examinations, the Authority has found that techniques aimed at obtaining truthful and reliable information from interviewees may constitute internal security practices under section 7106(a)(1). American Federation of Government Employees, Federal Prison Council 33 and U.S. Department of Justice, Federal Bureau of Prisons, 51 FLRA 1112, 1115-16 (1996) (Federal Bureau of Prisons),(citing National Federation of Federal Employees, Local 1300 and General Services Administration, 18 FLRA 789, 798 (1985) (GSA). As the Authority stated in Federal Bureau of Prisons:

It is well-established that management's right to determine its internal security practices under section 7106(a)(1) includes the authority to determine the policies and practices that are part of its plan to secure or safeguard its personnel, physical property or operations against internal and external risks. E.g., 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). The Authority has concluded that, where management shows a link, or reasonable connection, between its objective of safeguarding its personnel, property or operations and the investigative technique designed to implement that objective, a proposal that "conflicts with" the selected investigative technique directly interferes with management's right under section 7106(a)(1). Id.