American Federation of Government Employees, Local 1917 and U.S. Department of Justice, Immigration and Naturalization Service, New York, New York

[ v55 p228 ]

55 FLRA No. 40

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1917
(Union)

and

U.S. DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION
SERVICE, NEW YORK, NEW YORK
(Agency)

0-NG-2319

_____

DECISION AND ORDER ON A
NEGOTIABILITY ISSUE

February 26, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, 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). The appeal concerns the negotiability of one proposal. [n1] 

      For the reasons which follow, we find that the proposal is negotiable only at the election of the Agency under section 7106(b)(1) of the Statute. Accordingly, pursuant to section 2424.10 of the Authority's Regulations, we dismiss the petition for review.

II. Proposal  [n2] 

Inspectors at JFK-IA [John F. Kennedy International Airport] will be allowed to wear hand-cuffs and other non-lethal Service approved security equipment, along with appropriate leather gear, at all times, including primary area. Inspectors assigned to INSPASS [INS Passenger Accelerated Service System] Enrollment Center(s) or while performing "Gate Checks" or while performing maritime inspections and/or other duties outside the primary inspectional area will be, in addition to the above, armed with their Service approved weapon and be issued a working two-way radio.

III. Background

      The Union submitted the disputed proposal during negotiations on a supplemental agreement intended to modify the Agency's policy concerning the conditions under which immigration inspectors at John F. Kennedy International Airport (JFK-IA) may use approved non-lethal equipment and firearms. [n3]  At the time the proposal was submitted, the Agency's policy authorized the inspectors to carry approved firearms while at land and sea ports of entry, but prohibited them from carrying firearms while working in specified areas of the airport. The policy precluded the use of non-lethal equipment by employees assigned to primary inspections. [n4] 

      The Agency states that the term "primary area," as used in the Union's proposal, means secured areas at JFK-IA where immigration inspectors staff booths through which persons must pass before entering or re-entering the United States. [n5]  The Agency's INSPASS Enrollment Center is an area in JFK-IA where frequent international travelers can obtain an automated pass for rapid re-entry into the country via machine, rather than going through inspection booths. The Agency also states that "gate checks" refer to the Agency's policy of requiring inspectors to check passengers' documentation for entering the United States at the airport's international gates on "a selective and unscheduled basis[.]" Statement of Position at 3. [ v55 p229 ]

IV. The Authority Has Jurisdiction Under Section 7117(c) of the Statute to Resolve This Negotiability Dispute.

A. Agency's Position  [n6] 

      The Agency contends that the Authority should dismiss the petition for lack of jurisdiction under section 7117(c) of the Statute. The Agency argues that the petition does not present a negotiability dispute under section 7117(c)(1) of the Statute because the Union contends only that the proposal is electively negotiable under section 7106(b)(1) of the Statute, not that the Agency has a duty to bargain. The Agency claims that section 7117(c) does not authorize the Authority to assert jurisdiction over a petition for review where "the only disagreement between the parties is whether it is section 7106(a) or section (b)(1) which governs the negotiability of the proposal at issue." Statement of Position at 23. The Agency asserts that permitting unions to seek review in such disputes "comes very close to being a direct violation" of section 3 of Executive Order 12,871 (the Executive Order), under which "the Authority has been affirmatively directed by the President not to consider" appeals such as these. [n7]  Id. at 25-26. The Agency adds that Authority rulings in such cases "appear to represent precisely the type of advisory opinion" that the Authority is prohibited from issuing under section 2429.10 of its Regulations. Id. at 25.

B. Analysis and Conclusions

      The Agency's jurisdictional arguments are similar to those that were raised and addressed in American Federation of Government Employees, Council of Prison Locals, Local 171 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, El Reno, Oklahoma, 52 FLRA 1484 (1997) (FCI, El Reno). Consistent with that decision, and for the additional reasons set forth below, we reject the Agency's contentions that the Authority lacks jurisdiction over the Union's petition.

      Section 7117(c)(1) of the Statute provides, in relevant part, that "if an agency involved in collective bargaining with an exclusive representative alleges that the duty to bargain in good faith does not extend to any matter, the exclusive representative may appeal the allegation to the Authority in accordance with the provisions of this subsection." In FCI, El Reno, the Authority rejected the contention that the Authority lacks jurisdiction over a proposal where the union's only claim is that the proposal concerns a section 7106(b)(1) matter. The Authority held that:

Under section 7117(c)(1) of the Statute, the exclusive representative may file an appeal with the Authority when an agency alleges that the duty to bargain in good faith does not extend to any matter proposed for bargaining. This agency allegation is the sole express requirement for filing an appeal under section 7117(c)(1) of the Statute. Nothing in section 7117(c)(1) of the Statute conditions a union's ability to file a negotiability petition on the union's theory as to why a proposal is within the duty to bargain. Further, the Agency has not established that this is one of the "`rare and exceptional circumstances[]'" when "[t]he `strong presumption' that the plain language of the statute expresses [C]ongressional intent is rebutted" by a clearly expressed contrary legislative intent. Ardestani v. Immigration and Naturalization Service, 502 U.S. 129, 135-36 (1991) (citations omitted).

52 FLRA at 1489-90 (emphasis in original).

      Here, the Agency alleged that the duty to bargain did not extend to the proposal, and the Union timely appealed that allegation to the Authority. Further, the Agency continues to assert that it has no duty to bargain over the proposal because it directly interferes with its section 7106(a) rights. Thus, the Union's petition meets the jurisdictional requirements under section 7117(c)(1) of the Statute for filing a negotiability appeal with the Authority. The Agency's contention to the contrary is rejected.

      In addition, and also consistent with FCI, El Reno, we reject the Agency's claim that the Authority would violate section 3 of the Executive Order if it asserts jurisdiction over the petition. As relevant here, the Authority stated in FCI, El Reno that:

In considering the petition [for review], we are doing nothing more than resolving a negotiability appeal properly brought before us under section [ v55 p230 ] 7117(c)(2) of the Statute. Contrary to the Agency's suggestion, we are not addressing whether it is "required to" negotiate over the subjects set forth in section 7106(b)(1) of the Statute as provided under the Executive Order.

52 FLRA at 1490.

      Finally, in resolving the dispute as to the negotiability of the proposal, the Authority is not rendering an advisory opinion. Because, as noted above, this case concerns the negotiability of the disputed proposal under section 7106(a) and is properly before the Authority under section 7117(c), our decision herein is not speculative or hypothetical. Cf. American Federation of Government Employees, Local 1864 and U.S. Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 45 FLRA 691, 694-95 (1992) (decision as to proposals that might be offered in the future is speculative and constitutes an advisory opinion).

      Consequently, for the foregoing reasons, we reject the Agency's claims that the Authority lacks jurisdiction under section 7117(c) to resolve the negotiability dispute.

V. The proposal concerns unit employees' conditions of employment.

A. Agency's Position

      The Agency contends that the proposal is outside the duty to bargain under section 7103(a)(14) of the Statute because it does not concern unit employees' conditions of employment. More specifically, the Agency argues that decisions concerning when and where Federal employees may be authorized to carry weapons, including those encompassed by the proposal, involve "public policy" decisions that are essentially outside the duty to bargain. Statement of Position at 6. In addition, citing Article II, Section 3 of the U.S. Constitution, the Agency asserts that the proposal concerns a legislative enactment regarding the use of lethal force that the Executive Branch is responsible for administering. The Agency cites 8 U.S.C. § 1357(a) as authorizing the Attorney General to promulgate regulations prescribing the categories of employees who may use force, including deadly force, and the circumstances under which force may be used. [n8] 

      According to the Agency, pursuant to 8 U.S.C. § 1357(a), the Attorney General has issued legislative rules at 8 C.F.R. §§ 287.5(f) and 287.8(a) with respect to the exercise of deadly force. In sum, the Agency maintains that the Authority must find the proposal nonnegotiable "because Congress could not have intended to limit the authority, and thereby the responsibility, of the Executive Branch for making policy decisions which impact directly on public safety . . . [and that] the term `conditions of employment' as defined by 5 U.S.C. § 7103(a)(14) must be read as excluding such subjects." Statement of Position at 15 (emphasis in original; footnote omitted).

      The Agency also argues that "[t]he proposal does not concern conditions of employment because it addresses the subject of a statute which can [not] be said to have been issued for the purpose of affecting conditions of employment; and in any event, deals with a matter which is specifically provided for by Federal statute". Id. at 19 (internal quotations marks deleted; underscoring omitted). As to the first contention, the Agency states that 8 U.S.C. § 1357(a) was not issued for the purpose of affecting working conditions of employees but, rather, relates to the enforcement of immigration laws. Citing U.S. Department of the Treasury, Customs Service v. FLRA, 43 F.3d 682 (D.C. Cir. 1994) (Customs Service)), the Agency asserts that the court's interpretation of the phrase "any law, rule, or regulation affecting conditions of employment" in section 7103(a)(9)(C)(ii), "which recognizes that not every Federal law, rule or regulation was enacted or issued for the purpose of `affecting conditions of employment[,]'" should be applied to the phrase in section 7103(a)(14), "`whether established by rule, regulation, or otherwise, affecting working conditions . . . .'" Statement of Position at 15 n.9. [n9]  [ v55 p231 ]

      As to its second contention, the Agency maintains that the subject matter of the proposal is "specifically provided for" within the meaning of section 7103(a)(14)(C) of the Statute. The Agency cites U.S. Immigration and Naturalization Service v. FLRA, 4 F.3d 268 (4th Cir. 1993) (INS), in support. The Agency also states that "unless the phrase `specifically provided for' means that Congress must have precisely addressed the specific subject of the proposal . . . it would be difficult to [find] statutory language that came closer to meeting that requirement than that of 8 U.S.C. § 1357(a) . . . ." Statement of Position at 20-21.

      As an alternative argument, the Agency states that if the "conditions of employment" criterion is met, the proposal "must be rejected on the grounds that the interests of the public regarding its safety . . . would be more `vitally affected' by the proposal than those of the Inspectors." Statement of Position at 15-16, n.9. Citing American Federation of Government Employees, Local 2879, AFL-CIO and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, San Diego, California, 49 FLRA 1074, 1086-90 (1994), for the proposition that agencies may not negotiate provisions that establish conditions of employment for nonunit employees or employees represented in other units, the Agency argues that "[i]t would be curious, indeed" to severely limit such negotiations while at the same time permitting negotiations over "provisions which would directly affect the substance of a good or service which the agency concerned is obliged by law to provide to the public--particularly where, as here, the public's safety would be directly affected." Statement of Position at 15-16, n.9.

B. Analysis and Conclusions

      The term "conditions of employment" is defined as in section 7103(a)(14) as follows:

(14) "conditions of employment" means personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters--
(A) relating to political activities prohibited under subchapter III of chapter 73 of this title;
(B) relating to the classification of any position; or
(C) to the extent such matters are specifically provided for by Federal statute[.]

      The Agency does not dispute that, as a general matter, the equipment employees will use in the performance of their duties constitutes a condition of employment within the meaning of section 7103(a)(14) of the Statute. Rather, the Agency contends that insofar as decisions with respect to equipment also implicate matters of "public policy"--in this case, public safety--they are excluded from the definition of "conditions of employment." The Agency's contention must be rejected. See 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, 952-53 (1992) (Authority rejects agency argument that proposal concerning gate inspections does not concern conditions of employment because such inspections concern base security, which is the constitutional prerogative of the military commander). There is nothing in the text of section 7103(a)(14) that expressly excludes "public policy" decisions. To the extent the Agency's argument addresses an exclusion under section 7103(a)(14)(C), that argument is addressed below.

      Next, we reject the claim that the proposal does not pertain to conditions of employment because the proposal relates to 8 U.S.C. § 1357(a), a statute that was not enacted for the purpose of affecting employee working conditions. In this regard, the definition of "conditions of employment" in section 7103(a)(14) does not contain an exclusion that turns on whether a proposal relates to a statute that was issued for the purpose of affecting conditions of employment. The only exclusion for matters pertaining to a Federal statute is set forth in section 7103(a)(14)(C) and, as will be discussed below, that exclusion turns on whether a matter is specifically provided for by the statute. Moreover, Customs Service concerned whether a statutory provision constituted a "law," within the meaning of section 7103(a)(9), that could be enforced through the grievance procedure. It did not concern whether a proposal constituted a matter pertaining to conditions of employment within the meaning of section 7103(a)(14). Specifically, Customs Service did not hold that matters pertaining to the conditions under which customs inspectors would board vessels were not conditions of employment. Rather, the court held that the particular law pertaining to the boarding of vessels by customs inspectors that was relied on by the union in that case did not constitute a law concerning conditions of employment that was enforceable through the grievance procedure.

      Consequently, we reject the Agency's claim with respect to the operation of 8 U.S.C. § 1357(a). The [ v55 p232 ] issue of whether 8 U.S.C. § 1357(a) is a "law" enacted to affect conditions of employment of unit employees is not germane to determining whether the proposal here concerns employees' conditions of employment within the meaning of section 7103(a)(14).

      As to the Agency's claim that the proposal deals with a matter that is excluded from the definition of conditions of employment under section 7103(a)(14)(C), the Authority outlined the framework for determining whether a matter is "specifically provided for" by Federal statute within the meaning of section 7103(a)(14)(C) in International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135, et al. and U.S. Department of the Treasury, Bureau of Engraving and Printing, 50 FLRA 677 (1995) (BEP), affirmed, United States Department of the Treasury v. FLRA, 88 F.3d 1279 (D.C. Cir. 1996) (mem.). The Authority held that "[m]ere reference to a matter in a statute is not sufficient to exclude it from the definition of conditions of employment under [section 7103(a)(14)(C)]." 50 FLRA at 681 (citing National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 456, 487-88 (1990), decision on remand as to other matters, 43 FLRA 47 (1991). Instead, the Authority stated that it will find that a matter is "specifically provided for" by Federal statute only to the extent that the governing statute leaves no discretion to the agency. BEP, 50 FLRA at 682 (citing Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 835 (1987) (Chairman Calhoun concurring in relevant part), enforced as to other matters, 911 F.2d 743 (D.C. Cir. 1990)).

      In this case, it is clear that the statute in question, 8 U.S.C. § 1357(a), vests the Agency with discretion to determine the categories of employees who may use force, including deadly force, and the circumstances in which such force may be used. For example, 8 U.S.C. § 1357(a) provides that the Attorney General is authorized to prescribe by regulation that an Agency employee "may" carry a firearm. Since the statute in question gives the agency discretion regarding the subject matter of the proposal, the proposal does not concern a matter that is "specifically provided for by Federal statute." Consequently, we reject the Agency's section 7103(a)(14)(C) claim. [n10] 

      We also reject the Agency's claim that the proposal does not "vitally affect" unit employees' conditions of employment. The Agency contends that the proper test here is whether the subject matter of the Union's proposal "vitally affects" conditions of employment for bargaining unit employees more than it "vitally affects" the interests of the public, which, the Agency claims, it does not. Where a third party's concerns are directly implicated by a negotiating proposal, the "vitally affects" test is appropriate. American Federation of Government Employees, Local 32 and U.S. Office of Personnel Management, Washington, D.C., 51 FLRA 491, 502 (1995) (OPM) affirmed, American Federation of Government Employees v. FLRA, 110 F.3d 810, 813 (D.C. Cir. 1997) (citing Allied Chemical & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., Chemical Division, et al, 404 U.S. 157 (1971)).

      The "vitally affects" test does not apply here. The Union's proposal does not directly implicate a third party: it provides for the use of certain equipment by bargaining unit employees. To be sure, the proposal could "affect" the general public. However, the objective of the proposal is to alter a condition of employment for unit employees; any effect on the public is an indirect consequence of this proposal. That a proposal may have an impact on a third party does not, by itself, require the application of the "vitally affects" test. OPM, 51 FLRA at 491, 502-04; see also United States Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434, 1439-40 (D.C. Cir. 1992) ("vitally affects" test not implicated merely because otherwise sound union proposal would, if accepted, have an impact upon persons outside bargaining unit). As for the Agency's assertion that the proposal affects public safety, in particular, the prospect of such an effect does not implicate the "vitally affects" test where it otherwise would not apply.

VI. The Authority's interpretation of the relationship between section 7106(a) and section 7106(b)(1) of the Statute is correct.

A. Agency's Position

      The Agency contends that the Authority's construction of section 7106 of the Statute, set forth in National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386, 392 (1995) (VAMC, Lexington), is incorrect. According to the Agency, in VAMC, Lexington the Authority erro- [ v55 p233 ] eously interpreted the court's decision in Association of Civilian Technicians, Montana Air Chapter No. 29 v. FLRA, 22 F.3d 1150 (D.C. Cir. 1994) (Montana ACT), violated established rules of statutory construction, and misconstrued applicable legislative history. In particular, the Agency asserts that Montana ACT is limited to "agency head" review cases arising under section 7114(c) of the Statute, and is inconsistent with the court's earlier decisions in American Federation of Government Employees, Local 1923 v. FLRA, 819 F.2d 306, 308 (D.C. Cir. 1987), American Federation of Government Employees, Local 2782 v. FLRA, 702 F.2d 1183, 1186-87 (D.C. Cir. 1983), and Department of Defense, Army-Air Force Exchange Service v. FLRA, 659 F.2d 1140, 1159-60 (D.C. Cir. 1981), cert. denied, American Federation of Government Employees, AFL-CIO v. FLRA, 455 U.S. 945 (1982). The Agency states that the Authority "should revisit the D.C. Circuit's earlier rulings . . . ." Statement of Position at 39.

B. Analysis and Conclusions

      In FCI, El Reno, 52 FLRA 1484, the Authority considered and rejected similar arguments that the Authority's decision in VAMC, Lexington erroneously construed the relationship between section 7106(a) and section 7106(b)(1). First, the Authority reaffirmed its agreement with the court's holding in Montana ACT that "§ 7106(b) is indisputably an exception to § 7106(a)." Montana ACT, 22 F.3d at 1155 (emphasis in original); see FCI, El Reno, 52 FLRA at 1494. In particular, the Authority held that the court's statutory analysis in Montana ACT "was not dependent on, or limited to, the fact that the case arose in the context of an agency head's disapproval of a collective bargaining agreement[,]" and rejected the agency's claim that Montana ACT is inconsistent with earlier decisions by the same court. FCI, El Reno, 52 FLRA at 1494-95.

      Second, the Authority was unpersuaded by the agency's claim that the Authority had misapplied relevant principles of statutory construction or pertinent legislative history in VAMC, Lexington. Consistent with FCI, El Reno, the Agency's contention that the Authority erroneously construed the relationship between section 7106(a) and section 7106(b)(1) of the Statute in VAMC-Lexington is without merit and there is no basis to "revisit" the matter.

VII. The proposal affects the exercise of a management right under section 7106(a), and is not an appropriate arrangement under section 7106(b)(3) of the Statute.

A. Positions of the Parties

1. Union's Position

      The Union contends that the proposal is an appropriate arrangement. The Union asserts that the proposal seeks to ensure the safety of the inspectors "by implementing preventive measures and policies[.]" Petition for Review at 5. According to the Union, the Agency's previous policy vested inspectors with the right to decide for themselves when they would carry restraining devices and related gear in primary areas and when they would carry firearms on secondary assignments. [n11]  The Union argues that if the Agency does not reinstate this previous policy, an adverse affect is reasonably foreseeable. In the Union's view, to the extent that the proposal affects management's rights, such an effect is not excessive.

2. Agency's Position

      The Agency contends that the proposal interferes with its right under section 7106(a)(1) of the Statute to determine its internal security practices.

      The Agency also contends that the proposal does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute. The Agency asserts that the Union has failed to establish that employees were adversely affected by management's exercise of a reserved right. In particular, the Agency argues that the Union's claim that the proposal provides preventive safety measures for JFK-IA inspectors who have been "`assaulted and/or subject to a potentially hazardous situation'" is unsubstantiated, and, therefore, any adverse affect claimed by the Union is "speculative at best." Statement of Position at 51, 52 (quoting Petition for Review at 5). The Agency also claims that the proposal excessively interferes with its management right because it would negate its determination as to the security measures necessary to protect employees.

B. Meaning of the Proposal

      In interpreting a proposal, the Authority looks to its plain wording and any union statement of intent. If the union's explanation of the proposal is consistent with the proposal's plain wording, the Authority adopts [ v55 p234 ] that explanation for purposes of construing what the proposal means and, based on that meaning, deciding whether the proposal is within the duty to bargain. E.g., American Federation of Government Employees, Local 1900 and U.S. Department of the Army, Headquarters, Forces Command, Fort McPherson, Georgia, 51 FLRA 133, 138-39 (1995).

      By its terms, the proposal identifies the types of equipment that employees will be allowed to wear in the performance of their duties and prescribes the work areas or types of duties wherein employees will be allowed to wear that equipment. Specifically, employees will be allowed to wear handcuffs, [n12]  non-lethal Agency-approved security equipment, and appropriate leather gear at all times, including in the primary area. [n13]  Employees assigned to INSPASS, gate checks, maritime inspections, and other duties outside primary areas will be allowed to carry an Agency-approved firearm, in addition to the equipment listed above, and will be equipped with a working two-way radio. [n14] 

      The Union explains that the proposal is designed to ensure the safety of employees by providing them with equipment that will allow them to defend themselves. According to the Union, the proposal re-institutes the preventive measures that existed in previous Agency policy and thereby minimizes the risks inherent in the nature of employees' duties. The Union's explanation is consistent with the wording of the proposal and we adopt it for purposes of determining the negotiability of the proposal.

      Agency policy, which would be changed by the proposal, provides that employees will not wear firearms unless authorized by a supervisor. The policy also provides that leather gear, handcuffs and other non-lethal security equipment will not be worn by employees assigned to primary inspections. In the context of this policy, the effect of the proposal is to allow employees to wear firearms on specified work assignments without supervisory control. Similarly, because the proposal gives employees the absolute right to wear leather gear, handcuffs, and other non-lethal security equipment in the primary inspection areas, the proposal has the effect of removing the wearing of such equipment from supervisory control. Moreover, because it is clear that, under the proposal, employees may wear leather gear, handcuffs, non-lethal equipment and firearms on the specified assignments so that the equipment will be available for self-defense, the effect of the proposal is to permit the use of that equipment without supervisory control.

C. Analysis and Conclusions

1. The Proposal Affects Management's Right to Determine Its Internal Security Practices under Section 7106(a)(1).

      In American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and U.S. Department of Housing and Urban Development, 54 FLRA 171 (1998) (HUD), the Authority clarified the sequence of analysis it will follow in resolving negotiability disputes where parties disagree as to whether a proposal comes within the terms of section 7106(a) or section 7106(b). Where an agency claims that a proposal affects a management right or rights under section 7106(a), and a union claims that the proposal is within the duty to bargain under section 7106(b)(2) and/or (3), as well as being electively negotiable under section 7106(b)(1), for the reasons stated in HUD, the Authority will first resolve those claims that would determine if a proposal is within the duty to bargain, and then, if necessary, address those claims that would determine if a proposal is electively negotiable. See National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs Medical Center, Newington, Connecticut, 54 FLRA 521, 526-28 (1998) (VAMC, Newington).

      Following this sequence, we first address the Agency's claim under section 7106(a)(1). Because the Union does not dispute the Agency's contention that the proposal affects management's right to determine its internal security practices under section 7106(a)(1), we find that the proposal affects that right. See, e.g., VAMC, Newington, 54 FLRA at 527; International Federation of Professional and Technical Engineers, Local 25 and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 33 FLRA 304, 306 (1988); Fraternal Order of Police Lodge 1F (R.I.) Federal and Veterans Administration, Veterans Administration Medical Center, Providence, Rhode Island, 32 FLRA 944, 957-58 (1988) (VAMC Providence). We turn next to the Union's contention that the proposal is an appropriate arrangement under section 7106(b)(3). [ v55 p235 ]

2. The proposal is not an appropriate arrangement.

      The test for determining whether a proposal is within the duty to bargain under 7106(b)(3) is set out in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Under that test, the Authority initially determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. An arrangement must seek to mitigate adverse effects "flowing from the exercise of a protected management right." United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). To establish that a proposal is an arrangement, a union must identify the effects or reasonably foreseeable effects on employees that flow from the exercise of management's rights and how those effects are adverse. See KANG, 21 FLRA at 31. Proposals that address speculative or hypothetical concerns do not constitute arrangements. See, e.g., National Federation of Federal Employees, Local 2015 and U.S. Department of the Interior, National Park Service, Washington, D.C., 53 FLRA 967, 973 (1997). The alleged arrangement must also be sufficiently tailored to compensate or benefit employees suffering adverse effects attributable to the exercise of management's rights. See, e.g., American Federation of Government Employees, Local 1687 and U.S. Department of Veterans Affairs, Medical Center, Mountain Home, Tennessee, 52 FLRA 521, 523 (1996).

      If the proposal is an arrangement, the Authority determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management rights. KANG, 21 FLRA at 31-33. In determining whether a proposal is appropriate, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's rights. Id.

      Even assuming, without deciding, that the proposal constitutes an arrangement under the first inquiry in the KANG analysis, we conclude that the proposed arrangement is not appropriate under the second inquiry in that analysis because it excessively interferes with management's right to determine its internal security practices. We note at the outset that the proposal provides blanket permission to employees to wear and use firearms and other equipment in the work situations specified without supervisory control. In this regard, the proposal provides no exception for the exercise of managerial judgment as to the necessity for employees to wear such equipment depending on the circumstances in which they are working at any given time. Under the proposal, that is, management has no discretion to balance the day-to-day risks facing employees in their work environment against the need to protect other employees and the public from potential harm due to the use of that equipment.

      Specifically, even taking into account the distinctions between the type of security equipment that is permitted in the different work situations specified, because of the all-encompassing permission given by the proposal for employees to wear and use that equipment, the proposal imposes a significant burden on the Agency's ability to determine its internal security practices. See United States Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, 43 FLRA 642, 654-56 (1991) (Border Patrol, San Diego Sector). See also American Federation of Government Employees, Council of Marine Corps Locals, Council 240 and U.S. Department of the Navy, U.S. Marine Corps, Washington, D.C., 50 FLRA 637, 641 (1995) (provision, which permitted no exception to its requirements, imposed significant burden on management right); American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, 51 FLRA 1308, 1325-26 (1996) (provision imposed significant restriction on management's need for flexibility).

      We recognize that the proposal has some benefit for employees' personal safety and security by providing them with the equipment to protect themselves. However, the proposal gains that protection by removing all management control over the use of the equipment. Weighing the significant burden imposed by the proposal on management's determination of its internal security practices against the benefit afforded employees by the proposal, we find that the proposal excessively interferes with management's internal security right under section 7106(a)(1) of the Statute. [n15]  See Border Patrol, San Diego Sector, 43 FLRA at 654-56. See also American Federation of Government Employees, National Border Patrol Council and National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and [ v55 p236 ] Naturalization Service, 40 FLRA 521, 544-46 (1991), rev'd on other grounds, U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, 975 F.2d 218 (5th Cir. 1992).

      Accordingly, we find that the proposal excessively interferes with management's right to determine its internal security practices and does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. See American Federation of State, County and Municipal Employees, Locals 2910 & 2477 and U.S. Library of Congress, 49 FLRA 834, 841-43 (1994) (proposal excessively interferes with management's right to determine security policies that will ensure safety of staff and members of public).

VIII. The proposal is electively negotiable under section 7106(b)(1) of the Statute.

A. Positions of the Parties

1. Union's Position

      The Union contends that the proposal is negotiable at the election of the Agency because the carrying of firearms by law enforcement personnel is a "means" of performing the work of an agency within the meaning of section 7106(b)(1) of the Statute. The Union cites American Federation of Government Employees, AFL-CIO, International Council of U.S. Marshals Service Locals and Department of Justice, U.S. Marshals Service, 4 FLRA 384 (1980) (Marshals Service). The Union also claims, citing a previous arbitration award reviewed by the Federal Labor Relations Council under Executive Order 11,491, that prior negotiations relating to the carrying of sidearms at JFK-IA bar the Agency from asserting that the instant proposal is nonnegotiable.

2. Agency's Position

      The Agency contends that "the Union's assertion that the negotiability of the proposal is controlled by section 7106(b)(1) [of the Statute] must be rejected . . . ." Statement of Position at 30. The Agency seeks to distinguish this case from Marshals Service on the ground that Marshals Service dealt with the types of firearms that employees would carry, whereas here, the proposal focuses upon "when and where" the employees would be permitted to carry firearms, matters which the Agency calls "a `pure' internal security determination[.]" Statement of Position at 29.

B. Analysis and Conclusions

      The Authority has construed the term "method" to refer to "the way in which an agency performs its work." See International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA 813, 818 (1996). The Authority has construed the term "means" to refer to "any instrumentality, including an agent, tool, device, measure, plan, or policy used by an agency for the accomplishment or furtherance of the performance of its work." Id. The Authority employs a two-part test to determine whether a proposal interferes with management's right to determine the methods or means of performing work. First, the agency must show a direct and integral relationship between the particular method or means the agency has chosen and the accomplishment of the agency's mission. Second, the agency must show that the proposals would directly interfere with the mission-related purpose for which the method or means was adopted. See National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Region V, Walnut Creek, California, 41 FLRA 1195, 1202 (1991). [n16] 

      The record indicates that firearms, handcuffs, and "leather gear" are the tools or devices that the Agency uses to accomplish its law enforcement mission. Consequently, because the proposal requires the Agency to permit employees to use that equipment, the proposal is determinative of the means by which the Agency will perform its work within the meaning of section 7106(b)(1) of the Statute. See, e.g., VAMC Providence, 32 FLRA at 958-59 (proposal requiring agency to provide vehicles for use in accomplishing its law enforcement mission constitutes means of performing work). Moreover, because the proposal would permit employees to wear the specified equipment in circumstances precluded by the Agency's existing internal security policy, the proposal interferes with the purposes for which the Agency adopted that policy.

      The Agency's attempt to distinguish the Marshals Service case by distinguishing between proposals that concern the particular type of firearms, for example, that employees will use and proposals that concern the circumstances in which firearms will be used, is unavailing. The Authority has not so narrowly circumscribed what constitutes a means of performing work within the meaning of section 7106(b)(1). If a proposal prescribes the use of particular instrumentalities for mission-related purposes, it concerns the means of performing [ v55 p237 ] work within the meaning of section 7106(b)(1). [n17]  VAMC Providence, 32 FLRA at 958-59. The fact that those purposes may be related to the agency's internal security policies does not make the proposal any less a section 7106(b)(1) matter. Id.

      Accordingly, we find that the proposal is electively negotiable under section 7106(b)(1) of the Statute. Pursuant to section 2424.10 of the Authority's Regulations, we dismiss the petition for review.

IX. Order

      The petition for review is dismissed.


APPENDIX

The Agency's August 26, 1994, memo prescribing the policy stated as follows:

This memo will serve to reiterate the policy that is in effect regarding the carrying of a firearm while in the performance of official duties. With the exception of SIIs and SRIs, firearms will not be worn by inspectors unless specifically authorized to do so by a supervisor. As a supervisor you will not authorize more than one (1) inspector to be armed, and then only if we are holding a criminal alien in secondary. The transportation of criminal aliens to SPC will continue to warrant the inspectors to be armed.
Effective immediately, leather gear (other than a uniform belt) and handcuffs will not be worn by inspectors assigned to primary inspections.

Attachment to Union Petition for Review.

The Agency's August 28, 1994, memo stated as follows:
AAPDs & SIIs
THE FIRST PARAGRAPH [ABOVE] COVERS ALL INSPECTORS REGARDLESS OF THEIR DUTY ASSIGNMENT. THEREFORE, INSPECTORS ASSIGNED TO INSPASS OR TO ANY COLLATERAL DUTY WILL NOT BE ARMED.

Attachment to Union Petition for Review.






Footnote # 1 for 55 FLRA No. 40

   The Union filed an untimely Response to the Agency's Statement of Position. We have not considered that Response.


Footnote # 2 for 55 FLRA No. 40

   The proposal originally included the following sentence: "Additionally, while performing `Gate Checks' inspectors will be issued necessary gate keys for access throughout the gate area." However, in its Petition for Review, the Union states that the sentence is not in dispute and is "not an essential part" of the proposal. Petition for Review at 2. We find that the Union's statements constitute a revision of the proposal to exclude the last sentence and we will not consider it further in this decision.


Footnote # 3 for 55 FLRA No. 40

   According to the record, the Agency revised its policy concerning employee use of non-lethal equipment and firearms in memos dated August 26 and August 28, 1994. The negotiations on a supplemental agreement were conducted in April 1996, more than 18 months after the policy was revised.


Footnote # 4 for 55 FLRA No. 40

   The policy is set forth in the Appendix to this decision.


Footnote # 5 for 55 FLRA No. 40

   The parties do not dispute that the "primary area" referenced in the proposal is the area in which employees are assigned to the "primary inspections" referenced in the policy. The Agency defines a "secured" area as one in which entrants have already cleared security checkpoints, either at JFK-IA or at their points of departure. Statement of Position at 2-3.


Footnote # 6 for 55 FLRA No. 40

   The Agency's arguments regarding the Authority's jurisdiction, conditions of employment, and the relationship between section 7106(a) 7106(b) were raised in its statement of position. As found above, the Union's response to that statement of position is untimely and has not been considered. Therefore, only the Agency's contentions as to those issues are set forth herein.


Footnote # 7 for 55 FLRA No. 40

   Executive Order 12,871, 58 Fed. Reg. 52201, October 1, 1993, entitled "Labor-Management Partnerships," provides in relevant part that the Executive Order "does not[] create any right to administrative or judicial review, or any other right substantive or procedural, enforceable by a party against the United States, its agencies or instrumentalities, its officers or employees, or