National Treasury Employees Union (Union) and United States, Department of Homeland Security, Border and Transportation, Security Directorate, Bureau of Customs and Border Protection, Washington, D.C. (Agency)
[ v59 p978 ]
59 FLRA No. 172
DEPARTMENT OF HOMELAND SECURITY
BORDER AND TRANSPORTATION
BUREAU OF CUSTOMS
AND BORDER PROTECTION
DECISION AND ORDER
ON A NEGOTIABILITY ISSUE
May 19, 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 section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal. For the reasons which follow, we find that the proposal is not within the duty to bargain.
In August 2001, after the expiration of the parties' National Agreement, the Agency informed the Union that it would no longer be bound by the § 7106(b)(1) provisions in the agreement. [n1] Statement of Position at 7 (SOP). The Agency reiterated its position in February of 2003 and specified that it was not bound to Article 24, § 13(C) because it was a § 7106(b)(1) contract provision and affected the right to determine internal security practices. [n2] Id. at 7, Attachment 7; Petition for Review at Attachment A (Petition).
As a result of the retraction of Article 24, § 13(C) from the expired agreement, the Agency advised the Union that it was prepared to bargain over appropriate arrangements for employees adversely affected by the decision to retract the language. SOP at Attachment 8, Reply at 2. The Union proposed, as an appropriate arrangement, the retracted language from Article 24, § 13(C). Id. On April 11, 2003, the Agency informed the Union that the proposal submitted by the Union was not an appropriate arrangement and was not negotiable. Id. On August 29, 2003, the Union requested an allegation of non-negotiability from the Agency concerning the proposal. Petition at 1. The Agency provided a letter on September 2, 2003, stating that the proposal was non-negotiable. Id. The Agency explained that the provision infringes on its right to determine internal security practices. SOP at Attachment 9. The Agency reiterated its position that the language constituted a § 7106(b)(1) provision, negotiable only at the election of the Agency, which the Agency rescinded upon expiration of the agreement. Id.
In addition to the petition, the Union indicated that it had filed a grievance alleging, among other things, that the Agency "violated § 7116(a)(1) and (5) of the Statute by refusing to bargain over the substance of the change in conditions of employment relating to the use of alternative holsters and by refusing to comply with Article 24, Section 13.C." Post Petition Conference Report at 2 (Report). On October 8, 2003, the Authority issued a "Notice and Order to Show Cause" directing the Union to show cause why the petition should not be dismissed due to 5 C.F.R. § 2424.30(a) of the Authority's Regulations. [n3] In an October 17, 2003, letter to the Agency, the Union withdrew from the grievance the allegation that the Agency had violated 5 U.S.C. §§ 7116(a)(1) and (5), thereby precluding the grievance from being directly related to the Petition for Review. [n4] Response to Notice and Order to Show Cause. [ v59 p979 ]
III. Proposal [n5]
Arrangements for alternative methods of carrying the firearm are appropriate provided the employee attends required specialized training and follows requirements specific to the alternative carrying methods, i.e., those requirements relating to shoulder or purse holsters.
IV. Positions of the Parties
The Agency argues that the proposal interferes with its right to determine its internal security practices. SOP at 4. The Agency states that it has the "right to determine policies and take actions which are part of its plan to secure or safeguard its personnel and physical property." Id. (citing AFGE, Local 987, 37 FLRA 197, 299 (1990)). The Agency contends that the proposal would require it to authorize alternative holsters that would pose a threat to its employees and the public. SOP at 4. The Agency asserts that the link between its action, only allowing employees to use the authorized holsters, and its concern with protecting Agency personnel, property and the public, is evident. Id. As a result, the Agency asserts that the Authority should not review the merits of its action. Id. (citing AFGE, Local 1482, 31 FLRA 916, 918 (1988)).
According to the Agency, the employees involved are mainly inspectors and canine enforcement officers, most of whom work closely with the public. [n6] Id. The Agency maintains that even though the disputed language was in the expired agreement, alternative holsters have never been officially approved for use by these employees because shoulder holsters present a safety concern and uniformed officers may not carry a firearm in their purse because purses are prohibited while on duty. [n7] SOP at 4; Reply at 3.
The Agency, relying on an evaluation of one particular shoulder holster done by the Firearms and Tactical Training Division (FTTD), expresses its specific safety concerns with the use of shoulder holsters. [n8] Id. at 5. The Agency argues: the grip is "presented toward the front making it readily accessible to a subject during a physical confrontation"; the "retention level" is not effective; holstering the firearm may require the use of both hands and a "visual reference"; and the training to use the shoulder holster would require the Agency to make special arrangements to protect the user as well as others on the range. [n9] See id.; Reply at 4. Additionally, the Agency asserts that shoulder holsters would not be feasible for "uniformed pregnant employees" because the holster could not be attached to the pants or belt, as both would be concealed by a maternity shirt. Id.
The Agency argues that it has received only one request to use a shoulder holster, proving that the Agency is either accommodating pregnant employees by giving them assignments that do not require them to carry a firearm or employees are requesting to be excused from the full range of duties while they are pregnant. Id. at 5-6; Reply at 5. The Agency asserts that it is a common practice to assign alternative work to employees who cannot carry a firearm. Id. at 3; Reply at 3.
The Agency contends that the proposal is not an appropriate arrangement because it excessively interferes with its right to determine its internal security practices. SOP at 6. According to the Agency, the proposal "would negate the [A]gency's ability to determine the security measures necessary to protect employees and the public" and could have a deadly impact. See id. The Agency explains that the proposal would preclude it from determining the internal security practices necessary to protect Agency personnel, property and the public and that the negative effects on this right outweigh the benefit of the proposal to employees. Id. According to the Agency, if a proposal interfering with an agency's right to protect property is nonnegotiable, then this proposal should be nonnegotiable as it deals with serious risk to life. Id. (citing Voice of America, 41 FLRA 1068 (1991)). Finally, the Agency argues that the proposal excessively interferes with its right because it negates [ v59 p980 ] the Agency's determination regarding the holsters to be used by employees. Reply at 1-2, 5 (citing AFGE, Nat'l Border Patrol Council and Nat'l Immigration and Naturalization Serv. Council, 40 FLRA 521, 544-45 (1991)). [n10]
The Union maintains that the proposal does not interfere with the Agency's right to determine its internal security practices. Response at 3. Addressing the Agency's safety concerns with one particular shoulder holster, the Union contends that there are many alternative holsters that could provide the necessary safety while also accommodating the medical needs of employees. Id. In addition, the Union explains that alternative holsters were authorized for use prior to the expiration of the agreement containing the same provision. Id. at 5-6.
The Union first explains that there are many holsters that would provide a "vertical carry system" as opposed to the "horizontal system" over which the Agency expressed concern. Response at 3. The Union then argues that there are shoulder holsters with the same "retention level" as the Agency authorized holsters. Id. at 3-4. The Union also asserts that there are shoulder holsters that would not require an employee to use both hands and a visual reference to holster the firearm. Id. at 4. In addition, the Union states that there are shoulder holsters that could be worn by pregnant employees with maternity shirts. Id. at 5. Finally, the Union contends that the Agency's safety concerns could be alleviated through specialized training required under the proposal. Id. at 4.
The Union declares that the proposal would not place the public or employees in danger and does not abrogate the Agency's ability to determine which holsters to authorize. Id. at 5. According to the Union, the Agency would have the authority to make the ultimate decision as to which alternative holsters would be authorized and would be limited only by the requirement that it "exercise its authority [to authorize alternative holsters] in a reasonable matter [sic] and not disapprove all alternative carriage requests, as there are alternative holsters on the market that can be safely used by employees." See id.
The Union contends that the proposal is an appropriate arrangement "to address the impact of the Agency's exercise of its management right to require officers to carry a firearm and holster as a condition of employment." See Response at 6. The Union explains that the proposal alleviates the adverse impact on employees as a result of management deciding that most assignments require the carriage of a firearm. Id. According to the Union, employees with medical circumstances, such as pregnancy and back problems, may not be able to wear the traditional waist holster and without the use of an alternative holster would be unable to perform the full range of duties, causing them to "suffer a loss of income." See id.
As opposed to the benefits to the employees, the Union explains that there would be no adverse effect on the Agency's rights as alternative holsters have been used without any adverse effect on the public or employees. [n11] Id. at 7. The Union contends that there are a number of alternative holsters that would meet the Agency's safety requirements while also accommodating employees' medical circumstances and states that the proposal would not impact on the safety of the public or employees. Id. The Union also explains that under the proposal the Agency remains capable of requiring employees to carry a holster and a firearm and may determine which holsters are authorized. Id. at 7-8. According to the Union, the proposal is an appropriate arrangement because the burden on the Agency is slight compared to the benefits to employees. Id. at 8.
V. Analysis and Conclusions
A. Meaning of the Proposal
The parties in this case dispute the meaning of the Union's proposal. When interpreting a disputed proposal, the Authority will examine the wording of the proposal as well as the union's statement of intent. If the union's statement of intent comports with the plain words of the proposal, the Authority will adopt the union's interpretation of the proposal. AFGE, Local 1917, 55 FLRA 228, 234 (1999) (Local 1917) (citing e.g., AFGE, Local 1900, 51 FLRA 133, 138-39 (1995)).
The parties agree that the impact of the proposal would be to require the Agency to authorize some alternative holster. Response at 1, 5; SOP at 4. The Union argues that the Agency would have the right to determine specifications and policies for alternative carrying methods, but the policies would have to be applied in such a way as to give the proposal meaning. Response at 1. The Union states that the Agency "could not apply its policies in such a manner that the use of an alternative holster would never be approved" and the Agency [ v59 p981 ] could not "forbid the use of all holsters except for the traditional waist holster." See id. at 1, 7.
The parties disagree as to whether the proposal applies only to pregnant employees or to all employees with a medical circumstance that would prevent the use of a waist holster. According to the Union, the proposal would apply to both male and female employees who would require an alternative holster in order to address a change in an employee's "physical circumstances." Response at 1; Petition at 2. The Agency asserts that the proposal applies only to pregnant employees. SOP at 1.
The Union's explanation that the proposal applies to all employees that require an alternative holster because of a change in "physical circumstances" comports with the wording of the proposal. As a result, we adopt the Union's explanation of the application of the proposal. Local 1917, 55 FLRA at 233-34.
B. The proposal is outside the duty to bargain.
The Agency argues that the proposal affects its right to determine its internal security practices. SOP at 4. 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 NTEU, Chapter 101, 58 FLRA 653, 654 (2003) (NTEU, Chapter 101) (citing AFGE, Local 1920, 47 FLRA 340, 348 (1993) (Local 1920)). The right also encompasses an agency's decisions that employees must use certain types of protective equipment. AFGE, Council 214, 53 FLRA 131 (1997); NAGE, Local R7-72, 42 FLRA 1019, 1031 (1991).
The Agency maintains that there is a clear "link between the use of shoulder holsters and its concern with safeguarding its employees and the public . . . ." SOP at 4. Where an agency establishes a link between its goal of safeguarding its personnel, property or the public and its practice or policy to implement the expressed security concerns, the Authority will not review the merits of the agency's action. AFGE, Local 1030, 57 FLRA 901, 902 (2002) (Local 1030) (citing Local 1920, 47 FLRA at 348).
The Agency argues that the proposal would require it to authorize holsters that could prove dangerous to Agency personnel, property and the public. SOP at 4. The Agency explains that alternative holsters are not authorized for on duty use primarily because of safety concerns. Id. We conclude that the Agency has established a link between its action of only allowing the use of authorized holsters and its concern for the safety of the public and its personnel. Therefore, the Authority will not review the merits of the Agency's action. Local 1030, 57 FLRA at 901.
When an agency demonstrates such a link, any proposal that "interferes with or negates the agency's policy or practice affects the agency's right to determine internal security practices . . . ." See NTEU, Chapter 101, 58 FLRA at 654. The Agency's "Firearms and Use of Force Handbook" (Handbook) from December 2001, requires employees to carry an authorized holster and provides a list of the authorized holsters for on duty use. SOP at Attachment 4. The Union's proposal interferes with the Agency's policies set forth in the Handbook as it would require the Agency to authorize some alternative to those already authorized. Therefore, the proposal affects the Agency's right to determine internal security practices. NTEU, Chapter 101, 58 FLRA at 654.
In determining whether a proposal is an appropriate arrangement, the Authority follows the analysis set forth in NAGE, Local R14-87, 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. Id. at 31; see also United States Dep't of the Treasury, Office of the Chief Counsel, Internal Revenue Serv. 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 purely speculative or hypothetical concerns, or that are unrelated to management's exercise of its reserved rights, do not constitute arrangements. See, e.g., NAGE, Local R1-100, 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 AFGE, Local 1687, 52 FLRA 521, 523 (1996).
If the proposal is an arrangement that is sufficiently tailored, the Authority then determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right. KANG, 21 FLRA at 31-33. In doing so, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's right. Id.
Assuming that the proposal in this case constitutes an arrangement that is sufficiently tailored, the proposal does not constitute an appropriate arrangement because it excessively interferes with management's right to determine its internal security practices. See Patent Office Prof'l Ass'n, 56 FLRA 69, 79 (2000).
The Union argues that employees who cannot wear an Agency authorized holster because of a change in "physical circumstances" would benefit from the proposal because those employees could continue to perform the full range of duties requiring a firearm, [ v59 p982 ] including overtime, with the use of an alternative holster. [n12] Response at 6-7. The Union asserts that the proposal would only slightly interfere with the Agency's right to determine its internal security practices because the Agency can still require employees to carry a firearm and holster and can determine which alternative holster to authorize. Id. at 7-8. Although the Union asserts that the Agency "would have the right to set specifications[,]" the Agency would be required to authorize some alternative holster. Id. at 1.
The Agency argues that the proposal would effectively negate its right to determine the necessary internal security measures for the protection of personnel, property and the public. SOP at 6. The Agency argues that it would be required to approve some alternative holster even if it considered the alternative to be dangerous to the Agency personnel and the public. Id. at 3, 4.
On balance, the burden on the Agency's ability to exercise its management right to determine its internal security practices outweighs the benefits the proposal would afford to employees. Although the proposal would allow employees who are unable to carry the authorized holster to continue to perform the full range of duties, including overtime, the proposal would remove the Agency's discretion to determine the risks of alternative holsters to personnel, property and the public and to conclude that no alternative holster provides the same security as the authorized waist holsters. Because the Agency is required to approve an alternative shoulder holster even if it determines that all shoulder holsters present unacceptable risks and concerns, the proposal excessively interferes with the Agency's right to determine its internal security practices. Local 1917, 55 FLRA at 235 (finding a proposal that did not allow for managerial discretion excessively interfered with the agency's right to determine its internal security practices); AFGE, Nat'l Border Patrol Council, 40 FLRA 521, 544-46 (1991) (finding nonnegotiable a proposal that specified the firearms that would be authorized for off-duty use because it would "negate the [a]gency's determinations as to the weapons, or categories of the weapons, that safely may be used by the employees"). The proposal also places a significant restriction on the Agency's right to protect its personnel, property and the public by precluding it from requiring employees to carry the Agency authorized holsters. NAGE, SEIU, Local R7-51, 30 FLRA 415, 419 (1987) (finding a proposal requiring an agency to allow employees to have options for safety equipment on a motorcycle instead of having the agency required faceshield excessively interfered with the Agency's rights because it precluded the agency from "implementing its chosen internal security practice . . . .").
Given these restrictions on the Agency's exercise of the right to determine its internal security, the proposal excessively interferes with that right. Thus, the proposal does not constitute an appropriate arrangement and is outside the duty to bargain.
The petition for review is dismissed.
Section 13.A. If a pregnant employee authorized to carry firearms in the course of her duties wishes to perform the full range of duties envisioned in the position to which she is assigned, the Employer may request a medical certificate stating that the employee is physically capable of performing the full range of duties.
Section 13.B. Employees who elect to perform the full range of duties must qualify in accordance with appropriate firearms policy.
Section 13.C. Arrangements for alternative methods of carrying the firearm are appropriate provided the employee attends required specialized training and follows requirements specific to the alternative carrying methods, i.e. those requirements relating to shoulder or purse holsters.
Section 13.D. Light duty for a temporary period will be considered for a pregnant officer or for an officer returning to work after an injury, pregnancy or illness, provided that such work is available and the assignment will not unduly disrupt the work unit's operation. In such cases, the officer must provide a medical certificate indicating that the officer should work restrictively and that full recovery is expected.
Footnote # 1 for 59 FLRA No. 172 - Authority's Decision
An agency may elect to bargain over matters set forth in § 7106(b)(1) of the Statute, but is not required to do so. Following the expiration of a collective bargaining agreement, either party may notify the other that it will no longer be bound by the provisions in the expired agreement concerning § 7106(b)(1) matters. United States Dep't of Commerce, Patent and Trademark Office, 53 FLRA 858, 873 n.13 (1997) (citing Federal Aviation Admin, 23 FLRA 209 (1986). The Agency notified the Union that it was employing "its statutory right to terminate and no longer be bound by the provisions of the national agreement in which [the Agency] agreed to bargain over matters covered by 5 U.S.C. 7106(b)(1)." SOP at 7.
Footnote # 2 for 59 FLRA No. 172 - Authority's Decision
Footnote # 3 for 59 FLRA No. 172 - Authority's Decision
The Authority's Regulations state, "where an exclusive representative files an unfair labor practice charge . . . or a grievance alleging an unfair labor practice . . . and the charge or grievance concerns issues directly related to the petition for review . . . the Authority will dismiss the petition for review. The dismissal will be without prejudice to the [Union's] right . . . to refile the petition for review after the . . . grievance has been resolved . . . ." 5 C.F.R. § 2424.30(a).
Footnote # 4 for 59 FLRA No. 172 - Authority's Decision
5 U.S.C. § 7116(a)(1) states that it is an unfair labor practice "to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter." Section 7116(a)(5) states that it is an unfair labor practice "to refuse to consult or negotiate in good faith with a labor organization as required by [the law]."
Footnote # 5 for 59 FLRA No. 172 - Authority's Decision
Footnote # 6 for 59 FLRA No. 172 - Authority's Decision
Although the Agency does not directly state that the employees involved are uniformed officers carrying unconcealed firearms, it is implicit in the Agency's statement, "employees who have a mission requirement to carry a concealed firearm are not in uniform and are not involved in close interaction with the public." See SOP at 5; Reply at 3.
Footnote # 7 for 59 FLRA No. 172 - Authority's Decision
Footnote # 8 for 59 FLRA No. 172 - Authority's Decision
The Agency explains that the FTTD was established four years ago and administers its firearms program. SOP at 5. The FTTD is charged with: "(1) development of firearms and firearms-related policy and (2) evaluation and approval of equipment that will be used and worn by [Office of Field Operations] armed uniformed officers." See id.
Footnote # 9 for 59 FLRA No. 172 - Authority's Decision
The Union explains that a holster's retention level concerns the "difficulty of forcibly removing a gun from the holster. The higher the retention level, the more difficult it is to remove the firearm from a holster by force." Response at 3 n.3. Shoulder holsters have retention levels ranging from zero to three. Id.
Footnote # 10 for 59 FLRA No. 172 - Authority's Decision
Although the Agency argues that the proposal is electively negotiable because it concerns a "method or means" of performing work, there is no need to address this argument as we resolve the petition on another basis.
Footnote # 11 for 59 FLRA No. 172 - Authority's Decision
The Agency maintains that it never authorized the use of alternative holsters. SOP at 5; Reply at 3. Because the Union presented no evidence that employees were authorized to use alternative holsters or that the Agency had constructive or actual knowledge that employees were in fact using alternative holsters, we are unable to conclude that any such use was authorized.
Footnote # 12 for 59 FLRA No. 172 - Authority's Decision
It is important to note that of the employees the Union argues will benefit from the proposal, those experiencing a change in "physical circumstances" that would be defined as a disability under the Rehabilitation Act of 1973 may be entitled to some protection under that Act. The Rehabilitation Act utilizes the same standards established in the Americans with Disabilities Act in order to determine whether the Act has been violated "in a complaint alleging nonaffirmative action employment discrimination . . . ." 29 U.S.C. § 791(g).