American Federation of Government Employees, Local 1030 (Union) and United States Department of Justice, Federal Bureau of Prisons, Federal Detention Center, Houston, Texas (Agency)

[ v57 p901 ]

57 FLRA No. 189

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1030
(Union)

and

UNITED STATES DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL DETENTION CENTER
HOUSTON, TEXAS
(Agency)

0-NG-2622

_____

DECISION AND ORDER ON
NEGOTIABILITY ISSUES

June 26, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of six proposals. The Agency filed a statement of position. The Union filed a response to the Agency's statement of position.

      For the reasons that follow, we find that the proposals are outside the duty to bargain and dismiss the petition for review.

II.      Proposals 1-6  [n1] 

Proposal 1
The Agency will provide adequate shelter (guard shack) 10ft X 10ft inside dimensions.
Proposal 2
The Agency will provide an window AC/Heat unit 110 volts with a minimum of 6000 BTU.
Proposal 3
The Agency will provide a suitable desk and chair for staff to make log entries during their tour of duty.
Proposal 4
The Agency will provide a compact refrigerator to allow staff to store drinks and fruits during their hours of work.
Proposal 5
The Agency will provide a storage closet for inclement weather gear in the shelter.
Proposal 6
The Agency will allow for the outside perimeter to relieve themselves and have access to use the toilet facility located in the rear gate.

III.     Positions of the Parties

A.     Agency

      The Agency contends that the proposals conflict with its right to determine its internal security practices because they undermine its policy of constant oversight and surveillance on the perimeter of the facility. See Statement of Position (SOP) at 9. The Agency notes that the exercise of its right to determine its internal security practices includes the right 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. The Agency asserts that, as part of its security plan, it assigns guards to patrol the perimeter of the facility. In this regard, the Agency states that "the primary purpose of the outside perimeter patrol is constant, vigilant oversight to secure the safety of the institution, its employees, the inmates, and the public at large; distractions from that oversight are specifically discouraged." Id. at 6 (citations omitted).

      The Agency adds that it has established an outside perimeter shelter "for the limited purpose of allowing officers to note pertinent information and unusual incidents from their patrols in the log book, under cover, without having to go back inside the institution to do so." Id. The Agency argues that the proposals will "unacceptably increase the risk" that the guards on perimeter patrol will be distracted and diverted from "perimeter oversight." Id. at 8.

      Further, the Agency contends the Union's claim that the proposals are appropriate arrangements under § 7106(b)(3) constitutes a bare assertion that the [ v57 p902 ] Authority should not consider. In support, the Agency cites NTEU, 53 FLRA 539, 541-42 (1997). According to the Agency, the Union has failed to address how the proposals are sufficiently tailored to a specific, identified adverse effect on unit employees. The Agency also asserts that the Union fails to explain "how the expected benefits of the proposals outweigh the broad, significant constraints [it] place[s] on the Agency's ability to determine its own internal security practices and to maintain constant perimeter oversight." SOP at 11.

      The Agency also argues that the proposals excessively interfere with its right to determine its internal security practices because they would allow "employees to leave their patrols without prior approval or instructions regardless of the underlying circumstances or security consequences." Id. at 12.

B.     Union

      In its petition for review, the Union explained the meaning of each proposal. The Union also stated, with respect to its legal arguments concerning the negotiability of each proposal, that it would "[w]ait and explain in response to the Agency's statement of position." Id. at 5-9. Subsequently, in its response using the Authority's standard form, and answering question 7 which asks whether the proposals constituted appropriate arrangements under § 7106(b)(3) of the Statute, the Union checked "Answered in Petition for Review." Response at 5.

IV.     Meaning of the Proposals

      Proposals 1-5 require the Agency to provide an outside shelter for guards who patrol the perimeter of the facility and to equip the shelter with a heating and air conditioning unit, desk and chair, compact refrigerator and a storage closet. Proposal 6 would allow guards on outside perimeter patrol to take breaks to use the toilet facility located at the rear gate.

V.     Preliminary Matter

      In its petition for review, the Union requested that the Authority hold a hearing in this case. Under § 2424.31 of the Authority's Regulations, a hearing is appropriate "[w]hen necessary to resolve disputed issues of material fact."

      At the post-petition conference, the Union stated that the only "factual" issue it believes merits hearing is whether Article 29, Section d in the parties' master collective bargaining agreement requires the Agency to negotiate concerning these proposals. Post-Petition Conference Record at 1. Article 29, Section d provides that "[s]helter for outside posts for use of employees during inclement weather will be negotiated locally." Response at 6. The Agency agreed that Article 29, Section d requires the parties to negotiate locally regarding shelter for outside posts, but maintains that these six proposals are nonnegotiable because they affect management's right to determine internal security. See Post-Petition Conference Record at 1-2.

      We find that the Union's claim presents no disputed issues of material fact. Consequently, we conclude that a hearing is not necessary to resolve the negotiability of the proposals and