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

AMERICAN FEDERATION
OF STATE, COUNTY
AND MUNICIPAL EMPLOYEES
LOCAL 2830
(Union)

and

UNITED STATES
DEPARTMENT OF JUSTICE
OFFICE OF JUSTICE PROGRAMS
(Agency)

0-NG-2768

_____

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 conflicts with the agency's practice or decision conflicts with the agency's right under § 7106(a)(1) of the Statute. See AFGE, Local 1920, 47 FLRA 340, 348 (1993). [ v60 p673 ] The Authority does not review an agency's determination as to how the agency may best achieve its security objectives. See id. at 349.

      We conclude that the Agency has demonstrated a link between its goal of safeguarding its workplace and equipment and its decision to conduct searches when necessary, but especially when something is missing. The Agency argued that when property is missing, the quicker a search is conducted the more likely the chance of finding the property. The Agency also asserted that there are instances when an employee is absent when it is necessary to enter his or her work area to obtain time sensitive material. The Agency's arguments establish a link between its need to safeguard its workplace and equipment and its decision to conduct searches. Accordingly, the Agency's decision to conduct searches constitutes an exercise of its right under § 7106(a)(1) of the Statute to determine Agency internal security practices.

      The proposal requires the Agency head's approval, either directly or through an issued directive, before management may conduct a search of any desk, cabinet, or personal work space regularly used by an employee. By conditioning the Agency's right to conduct work-related searches on either specific Agency head approval or the issuance of a directive, the proposal affects the right to determine internal security practices under § 7106(a)(1) of the Statute. See AFGE, AFL-CO, Local 1411, 32 FLRA 990, 993-94 (1988) (AFGE Local 1411) (proposal requiring management to make an effort to locate and contact a vehicle's driver before towing the vehicle held to affect right to determine internal security practices).

      The Union claims that the proposal constitutes a negotiable procedure. Consistent with Authority precedent, which is not contested here, a proposal that affects a management right does not constitute a procedure under § 7106(b)(2) of the Statute. See NTEU, 59 FLRA 844, 847 (2004). Applying this precedent to our finding that the proposal affects the exercise of management's right to determine its internal security practices, we conclude that the proposal does not constitute a procedure under § 7106(b)(2) of the Statute. Therefore, the proposal is outside the duty to bargain.

B.      Assign Work

      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 position the duties will be assigned. See AFGE, Local 3529, 56 FLRA 1049, 1050 (2001); AFGE, Local 1985, 55 FLRA 1145, 1148 (1999). Proposals which require the assignment of specific duties to identified individuals, including management officials, affect management's right to assign work under § 7106(a)(2)(B) of the Statute. See AFGE, Local 1923, 44 FLRA 1405, 1428 (1992).

      As set forth above, under the proposal the phrase "officially authorized management activities" means that, in the absence of a standing directive, the Agency head was required to specifically authorize the activity each time a search was made. As the proposal assigns work to the Agency head and requires the Agency head to perform certain specific acts, we find that the proposal affects the Agency's right to assign work under § 7106(a)(2)(B) of the Statute.

      In the alternative, the Union explained that the Agency head could issue a directive delegating the authority to authorize searches or could establish a standing order to authorize searches. Requiring the Agency head to issue a directive also constitutes an assignment of work to the Agency head. Moreover, the right to assign work also includes the right not to assign work. See NAGE, Local R12-33, 40 FLRA 479, 486 (1991). Accordingly, requiring the Agency head to issue a directive authorizing the searches also affects the Agency's right to assign work under § 7106(a)(2)(B) of the Statute.

      Additionally, with regard to the Union's claim that the proposal constitutes a procedure, the Authority has held that proposals requiring management to assign particular individuals specific tasks do not constitute procedures within the meaning of § 7106(b)(2) of the Statute. AFGE, Local 3529, 56 FLRA at 1051; NTEU, Chapter 12, 36 FLRA 70, 73 (1990). The proposal here would require management to assign duties to the Agency head regarding authorizing searches. Consistent with Authority precedent, which is not challenged, we conclude that the proposal does not constitute a procedure within the meaning of § 7106(b)(2) of the Statute.

      Accordingly, we find that the proposal is inconsistent with the Agency's right to assign work under § 7106(a)(2)(B) of the Statute.

VI.      Order

      The petition for review is dismissed.