File 3: Opinion of Member Pope
[ v60 p388 ]
Member Pope, dissenting in part and concurring in part:
I agree with the majority's determination to grant the Union's motion to strike the Agency's argument that Proposal 10(a) concerns the technology of performing work, as well as the majority's conclusions that: (1) Proposal 10(a) is not a negotiable procedure; (2) Proposal 11 is outside the duty to bargain; and (3) Proposal 14, subsections (a),(b),(c), (d), and the second sentence of (f), are negotiable. I do not agree that Proposal 10(a), the first sentence of Proposal 14, section (f), and Proposal 14, subsections (g) and (h), are outside the duty to bargain. Accordingly, I dissent.
Before addressing the negotiability of specific proposals, I note that the majority incorrectly applies precedent governing determinations of whether proposals constitute appropriate arrangements under § 7106(b)(3). In particular, throughout its decision, the majority holds that proposals that affect management's right to determine its internal security practices by requiring modifications to management decisions involving internal security are not appropriate arrangements because they "preclude," "negate," and/or "nullify" the Agency's implementation of management's chosen internal security practice. See Majority Opinion at 14, 35. That is, the majority finds that any proposed deviation from management's chosen internal security practice necessarily outweighs whatever benefits the proposals afford employees.
The majority's approach is both analytically unsound and inconsistent with § 7106(b)(3) of the Statute. In this regard, the Union is entitled under § 7106(b)(3) to bargain over proposals that do not excessively interfere with the Agency's rights. This obviously encompasses proposals modifying agency decisions regarding those rights. See NAGE, 51 FLRA at 392 (quoting Montana ACT, 22 F.3d at 1155) (arrangements are negotiable "notwithstanding that implementation of the proposal would affect the enumerated managerial rights" (emphasis in Authority decision)). The mere fact that a proposal would mandate a change in an agency's internal security practice cannot, by itself, justify finding that the proposal's effects on management's right outweigh the proposal's benefits to employees.
Proposal 10(a) would require the Agency to provide overnight storage for employee firearms. The Authority recently addressed a substantially identical proposal in NTEU, 59 FLRA 749 (2004) (Member Pope [ v60 p389 ] dissenting). For the reasons explained in my dissent in that case, I would find that, under § 7106(b)(3) of the Statute, this proposal is an appropriate arrangement for employees adversely affected by the Agency's exercise of its right to determine its internal security practices. Id. at 757-58.
In this regard, the proposal would provide significant benefits to employees in that they would not be required to bring firearms into their homes after work. As in NTEU, 59 FLRA at 757, the Agency itself acknowledges that carrying a firearm off duty results in a "tremendous responsibility," with the "potential for significant liabilit[y] to the individual officer" and requires that an employees's behavior "must be significantly modified[.]" Statement of Position, Attachment 3 at 1. Moreover, also as in NTEU, the Agency has not demonstrated that the proposal's effects on the Agency's right to determine its internal security practices would outweigh these benefits. In this regard, the Union's proposal would is in no way at odds with the Agency's practice of requiring the secure storage of weapons, and does not constitute an effort to "second-guess" that practice. Majority Opinion at 14. Accordingly, I would find Proposal 10(a) within the duty to bargain.
Proposal 14, first sentence of subsection (f)
The first sentence of Proposal 14(f) requires that, where the Agency has taken away an officer's firearm during an investigation, the investigation will be "expeditious" and done "on a priority basis." The majority finds that this proposal is not an appropriate arrangement under § 7106(b)(3) because it excessively interferes with the Agency's right to determine its internal security practices. I disagree.
There is no question that an expeditious resolution of firearms issues is a significant benefit for employees, and the Agency does not dispute the Union's claim that employees are unable to perform important aspects of their job when their permission to carry firearms is withdrawn. Although the majority finds that the proposal would burden the Agency by requiring it to give greater priority to firearms authority investigations than to other, more important, investigations, this burden was not asserted by the Agency. See Statement of Position at 17, Reply at 7-8. The Agency asserted only that the proposal would require it to conclude an investigation prior to having successfully completed it, a result that is both inconsistent with the wording of the proposal and expressly disavowed by the Union.
Further, the Agency cites a survey indicating that the proposal would apply to only 55 employees out of 8,000 who have had their firearms authority removed for other than medical or qualifications reasons. Statement of Position at 15-16. Because resolving the firearms authority of these employees on an expeditious basis is a significant benefit to the employees involved, and because the Agency has not explained how expediting this relatively small number of cases would intrude on its management right, I would find that the first sentence of Proposal 14(f) is an appropriate arrangement.
Proposal 14(g) would subject the Agency's determination to remove an employee's firearm to the expedited arbitration procedures contained in the parties' National Agreement. The majority finds that the proposal affects the Agency's right to determine internal security practices and is not a negotiable procedure or appropriate arrangement. I do not agree with the majority that Proposal 14(g) affects the Agency's right to determine its internal security practices.
Neither the majority nor the Agency disputes the Union's explanations that Proposal 14(g) would: (1) subject a matter that is already subject to the grievance procedure to expedited -- rather than ordinary -- procedures; and (2) take effect only after the Agency determined, either preliminarily or finally, to withdraw the employee's authority to carry a firearm. It is well-settled that proposals concerning the scope and structure of the grievance procedure are within the duty to bargain. United Power Trades Organization, 44 FLRA 1145, 1168-69 (1992); AFGE, Local 3669, 4 FLRA 391, 394 (1980). Further, as the Statute expressly mandates that grievance procedures "provide for expeditious processing," 5 U.S.C. § 7121(b)(1)(C), the fact that a proposal would submit a management decision to expedited arbitration, rather than ordinary arbitration, does not affect the proposal's negotiability. Moreover, the assertion that a proposal will subject the agency's judgment to arbitral review is not a basis for finding a proposal nonnegotiable. AFGE, Nat'l Border Patrol Council and Nat'l Immigration & Naturalization Serv. Council, 40 FLRA 521, 528 (1991) (agency decisions concerning firearms authority). This precedent, which is not challenged by the Agency, supports a conclusion that Proposal 14(g) does not affect the Agency's right to determine its internal security practices.
Like the majority, I acknowledge that the proposal could result in management deciding to expedite its investigations in these matters in order to complete the investigations prior to expedited arbitration. However, [ v60 p390 ] that decision is within management's sole discretion and in no way mandated by the proposal. In other words, under the proposal, management retains its right to determine whether it will expedite an investigation in order to complete it prior to arbitration. Consequently, and for the reasons discussed above, I would find that Proposal 14(g) is within the duty to bargain. [n1]
According to the Union, Proposal 14(h) is an alternative method for challenging an Agency determination to remove an employee's authority to carry a firearm, which would apply when the Agency removes the authority to carry a firearm both on- and off-duty. The same considerations that render Proposal 14(g) negotiable apply to this proposal as well, and I would find that it is within the duty to bargain.
For the foregoing reasons, I concur that proposal 11 is outside the duty to bargain, and dissent with respect to proposals 10(a), the first sentence of 14(f), and 14(g) and (h).
Footnote # 1 for 60 FLRA No. 77 - Opinion of Member Pope
I would find the record insufficient to address the Agency's claims that Proposal 14, subsections (g) and (h), are "covered by" the parties' expired agreement and, as a result, would exercise discretion afforded the Authority under § 2424.30(b)(2) of the Authority's regulations and not resolve the claims. In this regard, the Agency notes that proposals concerning the grievance procedure were addressed in term negotiations between the parties and submitted to the Federal Services Impasses Panel (FSIP) for resolution. Although the FSIP subsequently issued a decision resolving this issue, the record does not disclose whether this decision has been implemented such that a new grievance procedure is in place. See Dep't of the Treasury, United States Customs Serv., Washington, D.C