National Treasury Employees Union (Union) and United States, Department of Homeland Security, Bureau of Customs and Border Protection, Washington, D.C. (Agency)

[ v59 p844 ]

59 FLRA No. 154

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

and

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
BUREAU OF CUSTOMS
AND BORDER PROTECTION
WASHINGTON, D.C.
(Agency)

0-NG-2733

_____

DECISION AND ORDER
ON A NEGOTIABILITY ISSUE

April 22, 2004

_____

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 three proposals. The Agency filed a statement of position. The Union filed a response to the Agency's statement of position.

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

II.      Proposals

Proposal 1(a)
Employees will be permitted to carry a privately owned pager, cell phone, or other wireless communication device to receive incoming calls or messages. Such devices will be set on an inaudible alert status.
Proposal 1(b)
Employees must receive prior supervisory approval to make outgoing calls or to engage in conversations using private or governmental wireless communication devices while in primary or secondary areas.
Proposal 2
Upon receiving an incoming call or message on a privately owned wireless communication device, employees will be permitted to leave the primary or secondary area to make outgoing calls, workload permitting.

III.     Positions of the Parties

A.     Agency

      The Agency maintains that the mission of the Department of Homeland Security is to "do everything [it] reasonably and responsibly can to keep terrorists, terrorist weapons and illegal drug activity from entering" the United States. Statement of Position (SOP) at 1. In this respect, the Agency maintains that as the Bureau of Customs and Border Protection, it is on "the nation's frontline against these threats." Id. The Agency asserts that inspectors in more than 300 ports of entry "conduct mission-critical examinations of passengers, cargo and conveyances in primary and secondary inspection areas to thwart terrorist activit[ies] and to enforce customs, immigration and agriculture laws." Id. The Agency maintains that all three proposals excessively interfere with its right to determine internal security measures by precluding the Agency from establishing its proposed permanent policy that will prohibit employees from carrying such wireless communication devices.

      With respect to Proposal 1(a), the Agency maintains that employees conducting inspections in primary and secondary areas must perform their duties without being distracted by personal matters, and that such employees must "pay close attention to the individuals and items they are inspecting in order to make judgments on admissibility and suspicious behavior." Id. at 2. The Agency also maintains that inspectors "carry firearms in the performance of [their] dut[ies] and must be vigilant in their observations against threats to Agency personnel as well as to the public." Id. at 3. Further, the Agency contends that its proposed permanent policy prohibiting employees from carrying such communication devices will eliminate the risk of employees using such devices while on duty in primary and secondary areas to communicate and coordinate with terrorists and drug smugglers. In this respect, the Agency maintains that an employee in another Federal law enforcement agency used his personal cell phone and pager to communicate with and aid drug smugglers in moving contraband through the port of entry. [ v59 p845 ]

      With respect to Proposal 1(b), the Agency emphasizes that the "potential adverse impact on [its] operations is significant" since employees can communicate with terrorists or drug smugglers by "receiving messages from terrorists and drug smugglers regarding imminent attempts to enter the United States," without actually responding to calls or messages on such wireless devices. Id. The Agency maintains that it "would have no way of knowing who the employee received a call from or who the employee intends to call back using their privately owned communication devices." Id. at 3-4. The Agency claims that "an employee could miss a traveler, terrorist, or weapon of mass destruction because of being distracted by calls or messages" on such communication devices that "would result in serious threats to the safety and security of the Agency's mission and the nation as a whole." Id. at 4.

      With respect to Proposal 2, the Agency maintains that like Proposals 1(a) and 1(b), it would interfere with its right to determine its internal security practices since Proposal 2 would still allow employees to carry and use wireless communication devices to receive calls or messages while in primary and secondary inspection areas.

      Lastly, the Agency maintains that the proposals do not constitute procedures since they directly interfere with its right to determine internal security practices. Similarly, the Agency maintains that the proposals are not appropriate arrangements because they excessively interfere with this management right.

B.     Union

      The Union claims that the Agency has failed to establish any reasonable link between its decision to prohibit employees from carrying personal wireless communication devices and it right to establish internal security practices. In this respect, the Union disagrees with the Agency's claim that employees would be distracted from performing mission critical examinations effectively by carrying such wireless devices under any of the proposals. The Union maintains that the "split second involved in determining whether the employee had received a call [is] no different than looking at the time on a wrist watch[.]" Union's Response at 2. The Union maintains that the Agency has failed to demonstrate how prohibiting employees from carrying wireless communication devices while they are in primary and secondary areas will inhibit employees from engaging in illegal communications with terrorists and drug smugglers since employees are permitted to carry and use such devices outside of primary and secondary areas. In this connection, the Union contends that even "under the extremely speculative scenario advanced by the Agency, . . . employees will still be able to communicate with criminals before and after work, and . . . outside of primary and secondary areas[.]" Id. at 3. Thus, the Union maintains that the Agency's ban on such wireless devices in primary and secondary areas does not serve any security interest.

      The Union also maintains that there is no interference with management rights since management retains sole discretion under Proposals 1(b) and 2 in deciding whether to allow employees to respond to calls or messages from primary or secondary areas or areas outside of these inspection work areas, and whether personal or governmental wireless devices are used.

      Alternatively, the Union maintains that the proposals are appropriate arrangements for all inspectors and canine enforcement officers who work in primary and secondary areas. The Union maintains that prohibiting employees from carrying wireless communication devices, prevents these employees, "like any other citizen, from keeping in touch with the outside world during the course of the work day[,]" and "adds a level of stress to an already stressful work environment." Id. at 4. For example, the Union claims that employees would be able to contact family members regarding myriad personal matters including emergencies, and other law enforcement officials regarding official duties.

      The Union also maintains that proposals 1(b) and 2 constitute negotiable procedures since these proposals do not directly interfere with the Agency's policy prohibiting employees from using such wireless devices to make outgoing calls in primary or secondary areas. Also, the Union maintains that Proposal 2 is consistent with current Agency policy, which allows employees to use such wireless devices outside of primary and secondary areas.

IV.     Meaning of the Proposals

      The parties agreed that Proposal 1(a) would permit employees to carry cell phones and pagers in an inaudible mode (for example, on vibrate) while on duty and periodically to check them for incoming calls and/or messages. Record of Post Petition Conference at 2. The parties further agreed that the proposal is intended to enable employees to receive messages on their personal wireless communication devices while on duty regarding personal matters from family members, day-care providers, as well as official matters from managers and law enforcement agencies. Id. The Union clarified that, under Proposal 1(a), employees would not be permitted to use the devices to make outgoing calls or to send outgoing messages. Id. [ v59 p846 ]

      The parties agreed that Proposal 1(b) would permit employees, upon receiving calls or messages on personal communication devices, to use either personal equipment or the Agency's equipment to respond to calls or messages from their work location in a primary or secondary area, as long as the employees received their supervisor's permission to do so. The Union explained that the proposal is intended to allow management to decide whether employees may return calls from their work area in a primary or secondary location and whether employees may return such calls using personal equipment or the Agency's equipment. Id.

      The parties agreed that under Proposal 1(b), if the supervisor disapproves an employee's request to respond to messages from the primary or secondary area, then under Proposal 2, the employee would be permitted to leave the primary or secondary work location in order to respond to calls or messages, as long as the workload allowed the employee to leave at that time. The Union explained that Proposal 2 would require employees to get management's approval before leaving their work areas to respond to calls or messages and would allow management to determine whether the workload permits an employee to leave the work area.

      The Union maintains that the three proposals are intended to operate independently, and that the viability or negotiability of one proposal does not affect the viability of any other proposal. The Agency disagreed with the Union's claim in this regard. Id. at 3. We find that the proposals do not operate independently of each other. Specifically, the ability to make and receive calls, as set forth in Proposals 1(b) and 2, is dependent on the ability to carry personal communication devices, as set forth in Proposal 1(a).

      The Union maintains that the Record of the Post-Petition Conference omitted the Agency's assertion during the conference that it wants employees to leave primary and secondary work areas to make outgoing calls so that when the employees return to the work area, they would be reassigned by supervisors to different inspection lanes from their previous lanes prior to leaving the primary and secondary work areas. The Union maintains that nothing in any of the proposals prevents management from taking this course of action when an employee returns to a primary or secondary work area. Response at 1, 3 n.2.

V.     Analysis and Conclusions

A.     The Proposals Affect the Right to Determine Internal Security Practices

      Under § 7106(a)(1) of the Statute, management's right to determine its internal security practices includes the right to determine the policies and practices that are necessary to safeguard its operations, personnel, and physical property against internal and external risks. See AFGE, Local 1920, 47 FLRA 340, 348 (1993). Where an agency demonstrates a link or a reasonable connection between its goal of safeguarding its personnel, property, or operations and its practice or decision designed to implement that goal, a proposal that directly interferes with or negates the agency's practice or decision affects the agency's right under § 7106(a)(1) of the Statute. See id. The Authority will not examine the extent to which the practices adopted by management to achieve its security objectives actually facilitate the accomplishment of those objectives. See id. at 349.

      The Agency contends that its mission involves ensuring homeland security, including safeguarding its personnel, physical property and operations, against internal and external risks posed by terrorists and illegal drug activity. The Agency notes that it has more than 300 ports of entry, where "inspectors [unit employees] conduct mission-critical examinations of passengers, cargo and conveyances in primary and secondary inspection areas to thwart terrorist activity and to enforce customs, immigration and agriculture laws." SOP at 1. In this respect, the Agency maintains that inspectors are "trained to pay close attention to the individuals and items they are inspecting in order to make judgments on admissibility" of such persons and items into the United States. Id. at 2. The Agency contends that its policy prohibiting such inspectors from carrying any wireless communication devices while on duty in primary and secondary areas ensures that employees will be able to perform these duties without being distracted by personal matters. The Agency maintains that employees are allowed to make and receive personal calls outside of the primary and secondary areas where inspections are conducted so as to avoid distractions while conducting these mission-critical examinations. Id. at 2-3. The Agency also notes that reducing or eliminating distractions that inspectors encounter is of paramount concern since inspectors "carry firearms in the performance of [their] dut[ies] and must be vigilant in their observations against threats to Agency personnel as well as to the public." Id. at 3.

      We find that the Agency has established a reasonable link between prohibiting employees from carrying [ v59 p847 ] wireless communication devices while on duty in primary and secondary inspection areas and its mission of ensuring the security of the U.S. homeland, its personnel, physical property, and operations against the threat or risks posed by terrorists, drug smugglers, weapons and contraband entering the United States. The Agency argues, and we agree, that allowing employees to carry such devices will increase the risk that inspectors will be distracted from their duties in inspecting individuals and cargo and detecting terrorists, drug-smuggling or other illicit activity. AFGE, Local 1030, 57 FLRA 901, 902-03 (2002) (Authority found that proposals permitting guards to avail themselves of outside shelters equipped with various amenities affected management's rights to determine its internal security practices by increasing the risk that the guards would be distracted from their duties).

      We find that the Agency has established that the determination to prohibit wireless communication devices involves an exercise of management's right to determine internal security. Consequently, since the proposals permit employees to carry wireless communication devices, we find that the proposals affect management's right to determine its internal security practices. See id.

B.     The Proposals Are Not Negotiable Procedures

      The Union claims that proposals 1(b) and 2 constitute negotiable procedures since these proposals do not directly interfere with the Agency's policy prohibiting employees from using such wireless devices to make outgoing calls in primary or secondary areas. Also, the Union maintains that Proposal 2 is a procedure since it is consistent with current Agency policy, which allows employees to use such wireless devices outside of primary and secondary areas. Consistent with Authority precedent, which is not contested here, proposals that are inconsistent with the exercise of a management right do not constitute procedures under § 7106(b)(2) of the Statute. See NAGE, Local R5-184, 55 FLRA 549, 551 (1999) (Member Wasserman dissenting on other grounds). Applying this precedent to our finding that the proposals affect the exercise of management's right to determine its internal security practices, we conclude that the proposals do not constitute procedures under § 7106(b)(2) of the Statute.

C.     The Proposals Are Not Negotiable Appropriate Arrangements

      The Union maintains that the proposals constitute appropriate arrangements for employees adversely affected by the Agency's exercise of its right to determine its internal security practices.

      The test for determining whether a proposal is within the duty to bargain under § 7106(b)(3) is set out in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). Under that test, the Authority initially determines whether a 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 Dep't of the Treasury, Office of the Chief Counsel, IRS 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., NFFE, Local 2015, 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., AFGE, Local 1687, 52 FLRA 521, 523 (1996).

      If a proposal is an arrangement, the Authority then 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.

      For the purposes of this decision, we assume here that the proposals are arrangements that are sufficiently tailored to benefit employees adversely affected by the exercise of management's right to determine its internal security practices. As for whether the proposals are appropriate arrangements, we find that allowing inspectors to carry personal wireless communication devices while on duty in the primary and secondary areas and allowing employees to respond to calls or messages received on such devices would provide a benefit to employees adversely affected by management's right to determine its internal security practices. As delineated by the Union, these proposals would allow employees to be in contact with their family members in the event of personal emergencies, as well as managers and other law enforcement officials.

      However, we find that this benefit is more than outweighed by the Agency's goal in safeguarding its operations and the public from the dangers posed by allowing inspectors to carry personal wireless communication devices while on duty in primary and secondary inspection areas. Significantly, the proposals would [ v59 p848 ] reverse the Agency's decision to establish a policy that completely prohibits all employees from carrying personal communication devices while on duty in primary and secondary inspection areas. The Authority previously has found that proposals having this effect do not constitute negotiable appropriate arrangements. See, e.g., IFPTE, Local 1, 49 FLRA 225, 249 (1994) (proposal acted as absolute restriction on right to assign particular duties to certain employees, found not to be appropriate arrangement); NFFE, Local 15, 30 FLRA 1046, 1057-58 (1988) (proposal that completely negated the Agency's decision to use random drug testing for purposes of protecting security would reverse the substantive impact of that decision and was not an appropriate arrangement); NAGE, Local R7-23, 23 FLRA 753, 759 (1986) (Local R7-23) (proposal which negates management's exercise of its right to determine internal security is excessive when it reverses the substantive effect of management's action).

      Consistent with this precedent, we find that the proposals in this case are not appropriate arrangements because they excessively interfere with management's right to determine its