American Federation of Government Employees, Local 1904 (Union) and U.S. Department of the Army, Army Communications- Electronics, Command and Fort Monmouth, Fort Monmouth, New Jersey (Agency)
[ v56 p787 ]
56 FLRA No. 131
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1904
U.S. DEPARTMENT OF THE ARMY
COMMAND AND FORT MONMOUTH
FORT MONMOUTH, NEW JERSEY
DECISION AND ORDER ON
September 28, 2000
Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns one proposal regarding the permanent placement of decals on employee vehicles. The Agency filed a statement of position and the Union filed a response. The Agency also filed a reply to the Union's response. [n1]
For the reasons that follow, we find that the proposal is outside the duty to bargain.
That all vehicles parking on Fort Monmouth be required to display a decal. This decal will be placed on a fixed surface and displayed in the middle of the windshield. The application of this decal in the vehicle will not be a permanent one, so as to allow for the removal when leaving the Fort Monmouth installation.
(Only the underlined portion of the proposal is in dispute.)
III. Preliminary Matter
This case arose when, as a part of its vehicle registration plan, and for reasons of installation security, the Agency decided to require all vehicles registered for use on the installation to affix a permanent decal to the windshield of those vehicles. The installation involved is a military base. In response, the Union proposed that the decal be used in some manner that did not involve permanently placing it on the windshield. When the Agency alleged that the proposal was nonnegotiable, the Union filed a petition for review of that allegation.
At some point after the parties completed their filings in the case, [n2] the Agency decided to institute the requirement for decals. The Union filed an unfair labor practice (ULP) charge with the Authority and a request for a temporary restraining order to block implementation of the plan. The Authority thereupon ordered the Union to show cause why its petition for review should not be dismissed without prejudice under section 2424.30(a) of the Authority's Regulations because of the filing of the ULP charge concerning the same matters involved in the negotiability dispute. [n3] The Union requested the withdrawal of its petition for review and the Authority dismissed the petition without prejudice.
The Union subsequently withdrew its ULP charge and requested that its negotiability petition be reinstituted. The Union also filed with its request a letter (Union letter) asking that the Authority not consider the Agency's reply to the Union's response because it does not comply with section 2424.26(c) of the Authority's Regulations. The Authority granted the Union's request and gave the Agency an opportunity to respond to the Union's letter. The Agency now argues that the letter does not meet the requirements of section 2424.27 of the Authority's Regulations regarding supplemental submissions.
B. Positions of the Parties
In its letter, the Union contends that the Agency's reply does not comply with section 2424.26(c) of the Authority's Regulations because it does not confine [ v56 p788 ] itself to matters that were raised for the first time in the Union's response. In this regard, the Union asserts that its response contained a restatement of arguments previously made to the Agency and did not include any matters raised for the first time in that response. According to the Union, in its statement of position, the Agency disregarded "the open nature of the installation" in setting forth its claim that the proposal concerned a matter pertaining to internal security. Union letter at 2. The Union claims that in its response it "extensively" addressed that issue. Id. The Union maintains that the Agency's reply "persists in its stubborn and plainly untrue declaration" that the proposal concerns the Agency's internal security. The Union also notes that the Agency has made contradictory statements with regard to whether the Union has claimed that its proposal is an appropriate arrangement under section 7106(b)(3) of the Statute.
The Agency claims that the Union has not demonstrated "extraordinary circumstances," as required by section 2424.27 of the Authority's Regulations, warranting acceptance of its letter. Specifically, the Agency argues that the Union simply reargues the merits of its claim that the proposal does not concern a matter pertaining to the Agency's internal security practices. The Agency contends that such an argument does not establish "extraordinary circumstances".
C. Analysis and Conclusions
We agree with the Agency that the Union has failed to establish that the Agency's reply does not comply with the requirements of section 2424.26(c). [n4] Specifically, the Union has failed to provide any evidence that gives rise to a question of whether the Agency's reply does not comply with the requirements of section 2424.26(c). The Union has not demonstrated that, by addressing the Union's arguments regarding the openness of the installation, the Agency, in its reply, was addressing matters other than those that were raised for the first time in the Union's response. Similarly, the Union has not established that, insofar as the Agency's reply addresses appropriate arrangements, it is addressing arguments other than those the Union first raised in its response.
IV. The proposal affects management's right to determine its internal security practices under section 7106(a)(1) of the Statute
A. Positions of the Parties
According to the Agency, the Union does not dispute that requiring the use of decals to identify vehicles registered with the Agency is an internal security practice within the meaning of section 7106(a)(1). Instead, the Agency argues, the Union disputes whether the requirement that the decals be permanently affixed to the windshield of the vehicles concerns an internal security matter.
In this regard, the Agency claims that the "overall purpose of the vehicle registration process[,]" including the use of decals, "is to identify a vehicle with an individual [who] has a legitimate affiliation with . . . , and a right to enter and park" a vehicle "on[,] the installation." Statement of Position at 5. According to the Agency, identifying vehicles in this manner allows it to control access to the installation and thus forestall potential threats against the installation. The Agency claims that permanently affixing the decal to the windshield is an integral part of this internal security plan.
Specifically, the Agency argues that permanently affixing the decal minimizes the loss of the decal. The Agency contends that detached decals, as proposed by the Union, increase the risk that decals will be lost or stolen, "thus subjecting the installation to a much higher degree of threat[.]" Id. at 8. According to the Agency, it would be easier for an individual seeking to gain unauthorized access to the installation to steal a detached decal than to steal a vehicle. Moreover, the Agency states that the permanently affixed decals are designed to tear when removed and could not be taken off of the vehicle and used. The Agency asserts that permanently affixed decals better ensure the installation's security. The Agency maintains that it has established "a reasonable, obvious connection between its goal of safeguarding" the installation "and the practice of permanently securing the registration decals to the employees' vehicles." Id. at 10. The Agency contends that the proposal prevents it from implementing this internal security practice.
In its reply, the Agency notes the argument in the Union's response that permanently affixed decals cannot be a matter of internal security because the installation is an "open post." Agency Reply at 2. The Agency argues that, even if the installation is an "open post," the practice still constitutes an aspect of its internal security [ v56 p789 ] plan. According to the Agency, in the absence of that practice, "management would be unable to rapidly institute a secure vehicle identification program at times of heightened security." Id. (emphasis in original). The Agency claims that the use of permanently affixed decals would allow it to close the installation, identifying authorized vehicles and controlling access, much more quickly. The Agency disputes the Union's claim that public roads running through the installation are not part of the installation.
The Union states that it does not consider the vehicle registration process, including the use of decals, to be a part of management's internal security measures. In particular, the Union argues that the installation is open to the public and that, in this context, no reasonable connection can be shown to exist between the use of decals and the Agency's internal security practices. According to the Union, it strains the "credibility of any rational person" to claim that an installation "freely traversed by the public will be rendered secure by affixing permanent decals to the vehicles of employees." Union Response at 1. The Union maintains that an individual seeking access to the installation "need only drive through one of the numerous open entrances" and could do so without a decal. Id. at 3. The Union also asserts that even if a detached decal were lost or stolen it would entail no security risk because anyone can drive onto the installation at any time.
B. Meaning of the Proposal
By its terms, and as explained by the Union, the proposal would provide for the decals used by the Agency to identify employee vehicles authorized for use on its installation to be placed on a fixed surface, rather than permanently attached to the windshield, so that the decals can be removed from the windshield when the employee leaves the installation.
C. Analysis and Conclusions
The Authority has consistently held that measures adopted by an agency to identify employees for purposes of controlling access to agency facilities constitute an exercise of management's right to determine its internal security practices under section 7106(a)(1) of the Statute. See, e.g., National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, National Guard Bureau, Alexandria, Virginia, 49 FLRA 874, 887 (1994) (National Guard Bureau); American Federation of State, County and Municipal Employees, Locals 2910 & 2477 and U.S. Library of Congress, 49 FLRA 834, 839-40 (1994) (Library of Congress). In this regard, the Authority has specifically stated that "the relationship between the need of a military base to retain the ability to restrict access to its premises and internal security considerations is obvious." U.S. Department of Defense, Fort Bragg Dependents Schools, Fort Bragg, North Carolina and Fort Bragg Association of Educators, OEA/NEA, 49 FLRA 333, 343 (1994). The Authority has found that a reasonable link exists between such measures and an agency's objective of safeguarding its personnel, property, and operations. See, e.g., National Guard Bureau and Library of Congress.
The Agency claims that the use of decals permanently affixed to the windshields of employee vehicles registered for use on the military installation involved in this case is intended to identify those vehicles as authorized to be present on the installation. According to the Agency, the purpose of identifying those vehicles is to control access to the installation and thereby establish a means of protecting Agency personnel and property. Moreover, the Agency states that the requirement of permanently affixing the decals to the windshields of vehicles in a manner that makes them impossible to remove is intended to reduce the risk that persons seeking unauthorized access will be able to obtain and use the decals. That is, because the requirement enhances the security of the decals, it enhances the security purposes served by the decals. The Agency's explanation of that requirement demonstrates that it is linked to its security objectives of safeguarding its installation.
The Union's arguments regarding the open nature of the installation essentially challenge the effectiveness of the security measures proposed by the Agency. As such, the Union's arguments provide no basis for determining that the requirement for permanently affixed decals does not constitute a matter pertaining to the Agency's internal security practices.
Because the proposal would preclude the Agency from accomplishing the security objectives served by the requirement for permanently affixing decals to the windshields of registered employee vehicles, we conclude that it affects management's right under section 7106(a)(1) of the Statute to determine its internal security practices. See, e.g., American Federation of Government Employees, Council 214 and Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 34 FLRA 977, 983-84 (1990) (proposals requiring issuance of base entry credentials to specific persons interfere with agency's security plan). Cf. American Federation of Government Employees, AFL-CIO, Local 1625 and Department of the Navy, Naval Air Station, Oceana, Virginia, [ v56 p790 ] 25 FLRA 1028, 1031 (1987) (proposal that does not interfere with agency's security purpose of ready identification of employees does not affect management's right to determine its internal security practices).
V. The proposal does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute
A. Positions of the Parties
According to the Agency, "[t]he [U]nion states that its proposal is an appropriate arrangement." Statement of Position at 10. The Agency also notes that "[t]he [U]nion provides no additional arguments regarding this claim." Id. In particular, the Agency asserts that the Union has not identified the management right it claims to have adversely affected employees or what the effects of that right are on employees or how those effects are adverse. Moreover, the Agency maintains that the proposal applies to all unit employees and the Union has not demonstrated which employees, if any, would be adversely affected by permanently affixing decals on their windshields.
The Agency claims that the Union's response does not "clearly state that its proposal is intended as an appropriate arrangement." Reply at 4. According to the Agency, the Union maintains that "its proposal is fully negotiable." Id. Based on the possibility that the Authority might conclude that the Union has raised an appropriate arrangements argument in its response, the Agency sets forth its reasons for concluding that the proposal is not negotiable under section 7106(b)(3) of the Statute.
Specifically, the Agency claims that the Union "has not, and can not, demonstrate that any employee within the United States has ever been a target of terrorist activity because of a vehicle registration decal identifying him or her as a civilian employee" of the Agency. Id. at 5. According to the Agency, the evidence provided by the Union establishes either only threats against Americans generally, or threats only against Americans overseas, and does not demonstrate that civilian employees of the Agency "are more likely to be attacked than any other person." Id. at 6. Particularly, the Agency notes, there is no indication in that evidence "that individual targeting will occur once the employee has left the installation." Id. at 7.
Moreover, the Agency asserts that in the absence of its security policy, employees either would have removable decals or could be issued permanent decals only in a period of heightened security. In the first situation, the Agency argues, the removable decals are vulnerable to loss or theft, which would preclude implementation of the Agency's policy. Describing the efforts a terrorist would have to go through to remove and duplicate the permanent decals, the Agency rejects the Union's argument concerning the possibility of such duplication as "unlikely." Id. at 8. In the second situation, the Agency argues, it would be unable to immediately implement a closed post using permanent decals because it would take time to distribute those decals and that delay would constitute an "unacceptable security risk[.]" Id. at 3.
2. Union [n5]
According to the Union, the Agency's statement that the Union has not claimed that its proposal is an appropriate arrangement is "patently untrue." Union Response at 4. The Union refers to "numerous documents . . . which set forth and elaborate upon all Union positions, arguments, concerns and proposals" and states that "[r]eview of these documents clearly shows the assertion of the [Agency] to be a falsehood." Id. The Union claims that the use of "permanent decals may make employees terrorist targets at any time or place." Id. at 2.
B. Analysis and Conclusions
In determining whether a proposal is an appropriate arrangement under section 7106(b)(3) of the Statute, the Authority follows the analysis set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Under this analysis, the Authority first determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. See also 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, the 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 purely speculative or hypothetical concerns, or that are unrelated to management's exercise of its reserved rights, do not constitute arrangements. [ v56 p791 ] See, e.g., National Association of Government Employees, Local R1-100 and U.S. Department of the Navy, Naval Submarine Base New London, Groton, Connecticut, 39 FLRA 762, 766 (1991). The claimed arrangement must also be sufficiently "tailored" to compensate only those employees suffering adverse effects attributable to the exercise of management's rights. See id.
If the proposal is an arrangement that is sufficiently tailored, the Authority then determines whether or not it is appropriate, based on whether it excessively interferes with the relevant management right(s). See KANG, 21 FLRA at 31-33. In doing so, the Authority weighs the benefits afforded to employees under the arrangements against the intrusion on the exercise of management's rights. Id.
As noted, the Union claims that the requirement of decals permanently affixed to the windshields of vehicles will identify employees of the installation as possible targets of terrorist activity away from the installation. The inference is that employees would be adversely affected by being identified in this manner as a result of the adoption of the Agency's policy.
Even assuming that the Union has provided enough evidence to establish that threats against installation employees away from the installation is more than a speculative possibility, and thus is sufficient to establish that the proposal is an arrangement within the meaning of section 7106(b)(3), we find that the proposal is not an appropriate arrangement within the meaning of section 7106(b)(3). [n6] The Union's arguments are essentially based on the premise that employee safety would be increased if removable decals were used. For this reason, the Union claims that "permanent decals may make employees terrorist targets at any time or place." Union Response at 2. We recognize that protecting the identity of employees may help to ensure their safety off the Agency's facility. However, it is not clear that the proposal would provide employees the protection envisaged by the Union. Any terrorist intending to target individual installation employees need only observe which vehicles regularly enter and park on the installation and follow those vehicles when they leave in order to discover the itineraries and homes of the employees.
On the other hand, permanently affixed decals provide the Agency with a high degree of certainty that vehicles possessing those decals are properly on the installation. Moreover, as the Agency points out, the removable identification proposed by the Union is vulnerable to theft, thereby increasing the security risk to the Agency. And, as the Agency demonstrates, the risk of theft associated with the proposal is much greater than the possibility of terrorist duplication of the permanently affixed decals as suggested by the Union. As the Agency also demonstrates, the use of permanently affixed decals would facilitate the immediate implementation of measures to close the installation to unauthorized vehicles in a time of heightened security. The proposal could hinder such a response, thus also increasing the Agency's security risks.
In our view, the minimal nature of the benefit afforded employees by the proposal is clearly outweighed by the burden on the Agency's security efforts that would result from implementation of the proposal. Even assuming, therefore, that the proposal constituted an "arrangement," it would not be an "appropriate" arrangement because it would excessively interfere with management's right, under section 7106(a)(1) of the Statute, to determine its internal security practices. See, e.g., National Association of Government Employees, Federal Union of Scientists and Engineers, Local R1-144 and U.S. Department of the Navy, Naval Underwater System Center, Newport, Rhode Island, 42 FLRA 730, 752 (1991); Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783, 806-07 (1991).
Accordingly, for the foregoing reasons, we conclude that the proposal does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute and is outside the bargain.
The petition for review is dismissed. [ v56 p792 ]
1. Section 2424.26(c) of the Authority's Regulations provides, in relevant part, as follows:
§ 2424.26 Agency's reply; purpose; time limits; content; service.
. . . .
(c) . . . The agency's reply is specifically limited to the matters raised for the first time in the exclusive representative's response. . . .
2. Section 2424.27 of the Authority's Regulations provides, in relevant part, as follows:
§ 2424.27 Additional submissions to the Authority.
The Authority will not consider any submission filed by any party other than those authorized under this part, provided however that the Authority may, in its discretion, grant permission to file an additional submission based on a written request showing extraordinary circumstances by any party. . . .
3. Section 2424.30(a) of the Authority's Regulations provides as follows:
§ 2424.30(a) Procedure through which the petition for review will be resolved.
(a) Exclusive representative has filed related unfair labor practice charge or grievance alleging an unfair labor practice. Except for proposals or provisions that are the subject of an agency's compelling need claim under 5 U.S.C. 7117(a)(2), where an exclusive representative files an unfair labor practice charge pursuant to part 2423 of this subchapter or a grievance alleging an unfair labor practice under the parties' negotiated grievance procedure, and the charge or grievance concerns issues directly related to the petition for review filed pursuant to this part, the Authority will dismiss the petition for review. The dismissal will be without prejudice to the right of the exclusive representative to refile the petition for review after the unfair labor practice charge or grievance has been resolved administratively, including resolution pursuant to an arbitration award that has become final and binding. No later than thirty (30) days after the date on which the unfair labor practice charge or grievance is resolved administratively, the exclusive representative may refile the petition for review, and the Authority will determine whether the resolution of the petition is still required.
Footnote # 1 for 56 FLRA No. 131
Because the record in this case provides a sufficient basis for determining the negotiability of the disputed proposal, we deny the Union's request for a hearing under section 2424.31(c) of the Authority's Regulations. See, e.g., United Power Trades Organization and U.S. Department of the Army, Corps of Engineers, Walla Walla, Washington, 44 FLRA 1145, 1189 n.2 (1992).
Footnote # 2 for 56 FLRA No. 131
Under the Authority's Regulations, the parties' briefing sequence is as follows: (1) the Union's petition for review; (2) the Agency's statement of position; (3) the Union's response; and (4) the Agency's reply.
Footnote # 3 for 56 FLRA No. 131
Footnote # 4 for 56 FLRA No. 131
In view of this result, it is not necessary to decide whether submissions challenging a party's compliance with the Authority's Regulations governing filings in negotiability appeals is more properly considered under section 2424.27, pertaining to supplemental submissions in such appeals, or under section 2429.26, pertaining to the Authority's discretion to a