American Federation of State, County, and Municipal Employees, Local 2830 (Union) and United States, Department of Justice, Office of Justice Programs (Agency)
[ v60 p671 ]
60 FLRA No. 131
OF STATE, COUNTY
AND MUNICIPAL EMPLOYEES
DEPARTMENT OF JUSTICE
OFFICE OF JUSTICE PROGRAMS
DECISION AND ORDER
ON A NEGOTIABILITY ISSUE
March 7, 2005
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 one proposal. For the reasons which follow, we find that the proposal is inconsistent with management's rights to determine its internal security practices under § 7106(a)(1) of the Statute and to assign work under § 7106(a)(2)(B) of the Statute. Accordingly, we find that the proposal is outside the duty to bargain.
II. The Proposal
The following proposal is at issue:
The Employer agrees not to open or enter any desk, cabinet, or personal work space regularly used by an employee unless such actions are officially authorized management activities.
Petition at ¶ 9.
III. The Meaning of the Proposal
The proposal is silent with respect to how the proposal is intended to operate. When a proposal is silent as to a particular matter, a Union statement clarifying the matter is considered consistent with the proposal's plain wording so long as the statement otherwise comports with the proposal's wording. See, e.g., Nat'l Educ. Ass'n, Overseas Educ. Ass'n, Laurel Bay Teachers Ass'n, 51 FLRA 733, 737 (1996).
During the post petition conference, the Union explained the operation of the proposal. According to the Union, "the Agency would be precluded from conducting such searches [of any desk, cabinet, or personal work space] unless it was an `officially authorized management activity.' The Union defined the term "officially authorized management activity" as an activity that would be authorized by the Agency head and then executed through the chain of command. [n1] Record of Post-Petition Conference at 2. The Union also stated that if the "`officially authorized management activity' is not already implied by existing authority, the Agency head can promulgate a standing directive authorizing supervisors to search employee work spaces pursuant to Agency work needs." Union Response at ¶ 2 (emphasis in original). As the Union's explanation is consistent with the plain wording of the proposal, we adopt this meaning of the proposal for purposes of our analysis, and conclude that the proposal requires the Agency head's approval, either directly each time a search is made or through issuance of a standing directive, before management may conduct a search of any desk, cabinet, or personal work space regularly used by an employee. [n2]
IV. Positions of the Parties
A. Union's Position
1. Internal Security
The Union asserts that the proposal does not interfere with the Agency's right to determine its internal security practices. The Union contends that its proposal is only a procedure which Agency officials shall observe in exercising their authority under the Statute. The Union further contends that the Agency has not established that the proposal would be inconsistent with its right, inasmuch as it would not prevent the Agency from conducting checks to reveal security risks or criminal conduct. Union Response at 3.
2. Assign Work
The Union disagrees with the Agency's contention in the Agency's declaration of nonnegotiability that the [ v60 p672 ] proposal conflicts with management's right to assign work. The Union contends that the proposal could be implemented consistent with law and regulation in a manner that would allow the Agency to maintain its management right. Union Response at 3. The Union asserts that it recognizes the right of the Agency head to authorize supervisor inspections or searches for work-related purposes. Therefore, the Union contends that the proposal is not inconsistent with management's right to assign work. The Union also claims that the proposal constitutes a procedure. Id.
B. Agency's Position
1. Internal Security
The Agency contends that the proposal impermissibly affects management's right to make internal security determinations pursuant to § 7106(a)(1) of the Statute. The Agency asserts that the Authority has held that the right to determine internal security practices includes the authority to determine the policies and practices that are part of an agency's plan to secure or safeguard its personnel, physical property or operations against internal and external risks. The Agency also points out Authority precedent which holds that where management shows a link or reasonable connection between its objective of safeguarding its personnel, property, or operations and the investigative technique designed to implement that objective, a proposal that conflicts with the technique affects management's right under § 7106(a)(1) of the Statute. In this regard, the Agency contends that the Authority has consistently held that proposals which would restrict an agency's ability to conduct searches intended to protect agency property from theft or misuse directly interfere with the agency's right to determine its internal security practices. The Agency also claims the Authority has held that proposals which place limitations on an agency's ability to conduct unannounced searches are nonnegotiable.
The Agency contends that under this proposal it would be precluded from entering a bargaining unit employee's office, opening any file cabinet, desk drawer, or computer in that space, without the specific authorization of the Agency head. The Agency argues that such limitations would hamper its ability to deter theft or misuse of Agency equipment and supplies. The Agency further argues that the proposal would prevent the Agency from conducting immediate searches when necessary to prevent the theft of Agency property on Agency grounds. For these reasons, the Agency contends that it has established a sufficient link to establish that the proposal affects its right to determine its internal security practices and, therefore, that the proposal is not negotiable under § 7106(a)(1) of the Statute.
2. Assign Work
The Agency asserts that the right to assign work under § 7106(a)(2)(B) of the Statute encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. The Agency points out Authority precedent which holds that proposals which allow an agency to choose who in its supervisory or managerial structure will be assigned certain responsibilities do not implicate the exercise of management's rights. However, the Agency contends the Authority has held that proposals which require the assignment of specific duties to identified individuals, including management officials, directly interfere with management's right to assign work under § 7106(a)(2)(B) of the Statute.
The Agency claims that the Union stated, during the post-petition conference, that the phrase "officially authorized management activities" meant the activity had to be specifically authorized by the Agency head or authorized by a directive authorized by the Agency head. According to the Agency, because no directive authorizing searches exists, requiring the Agency head to authorize each search constitutes an assignment of work to the Agency head, which would require the Agency head to do something specific, i.e., determine whether a supervisor or other management official could "enter any desk, cabinet, or personal work space regularly used by an employee." Therefore, the Agency contends that the proposal directly interferes with management's right to assign work under § 7106(a)(2)(B) of the Statute and is not negotiable.
V. Analysis and Conclusions
A. Internal Security
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 which are part of its plan to secure or safeguard its personnel, physical property, and operations against internal and external risks. See AFGE, Local 2143, 48 FLRA 41, 44 (1993) (Member Talkin concurring as to other matters). 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 confli