National Treasury Employees Union (Union) and United States Department of the Treasury, United States Customs Service (Agency)

[ v62 p321 ]

62 FLRA No. 56

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

and

UNITED STATES
DEPARTMENT OF THE TREASURY
UNITED STATES CUSTOMS SERVICE
(Agency)

0-NG-2615
(59 FLRA 749 (2004))

_____

DECISION AND ORDER
ON A NEGOTIABILITY ISSUE

December 14, 2007

_____

Before the Authority: Dale Cabaniss, Chairman and
Wayne C. Beyer and Carol Waller Pope, Members [n1] 

I.      Statement of the Case

      This case is before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit in National Treasury Employees Union v. FLRA, 404 F.3d 454 (D.C. Cir. 2005) (NTEU II) (reviewing NTEU, 59 FLRA 749 (2004) (NTEU I) (Member Pope dissenting).

      The court remanded the case to the Authority to determine whether the proposal constitutes an appropriate arrangement pursuant to § 7106(b)(3) of the Federal Service Labor-Management Relations Statute (Statute). For the reasons that follow, we find that the proposal constitutes an appropriate arrangement because it does not excessively interfere with the Agency's right to determine its internal security practices. Moreover, we find that the proposal does not affect the Agency's right to assign work or to determine the technology, methods, or means by which work is performed. Accordingly, we find that the proposal is within the duty to bargain.

II.     Proposal

Customs will ensure that either a lockbox or other secure and locked container such as a safe, file cabinet, or desk is available at all government offices where armed employees work or are assigned. Routine overnight storage of a firearm in a government office is permitted.

III.      The Authority's Decision in NTEU I and the Court's Decision in NTEU II

      In NTEU I, the Authority determined that the Union's proposal affected the Agency's right to determine its internal security practices under 5 U.S.C. § 7106(a). Further, the Authority found that the proposal did not constitute a procedure pursuant to § 7106(b)(2) of the Statute because the proposal required adoption of security measures to ensure a specific level of security. Moreover, the Authority determined that the proposal did not constitute an appropriate arrangement because the proposal would preclude the Agency from requiring employees to maintain possession of and access to their weapons while off duty. Additionally, the Authority concluded that the proposal did not constitute an appropriate arrangement pursuant to § 7106(b)(3) of the Statute "[b]ecause this proposal would mandate that the Agency undertake actions to provide such security even at locations that are not under its control[.]" NTEU I, 59 FLRA at 754. Accordingly, the Authority determined that the "Union's proposal imposes a burden upon the Agency's exercise of its management right to determine internal security practices that outweighs the benefits provided to some unit employees." Id. at 755.

      In its decision, the court upheld the Authority's determination that the proposal affected the Agency's right to determine its internal security practices and that it did not constitute a procedure. NTEU II, 404 F.3d at 456-57. Moreover, the court left undisturbed the Authority's conclusions that the proposal could not be severed; constituted an arrangement; and that it was sufficiently tailored. See NTEU I, 59 FLRA at 753, 754. However, the court ultimately determined that the Authority did not sufficiently support its conclusion that the proposal excessively interfered with the Agency's right to determine its internal security practices. It specifically noted:

On the record before [it] [the Authority] and this Court, the Authority has not established that the proposal would `negate or nullify' the agency's right to implement the practice it followed at the time the Union made the proposal. The most the proposal would require is the institution at other facilities of a method of carrying out agency internal security policies already in place at some locations. Whether this constitutes an appropriate arrangement is a question for the [ v62 p322 ] Authority to answer in the first instance, but it must do so on findings based on the record before it, and by a process consistent with its own precedent.

NTEU II, 404 F.3d at 458.

      Accordingly, the court remanded the matter to the Authority for review consistent with the court's instruction set forth above.

IV. Preliminary Matter

      Subsequent to the remand, the Union submitted a request to establish a briefing schedule in order to submit additional argument to resolve "questions concerning the agency's obligation to introduce evidence into the record to support claims as to how it exercises the management right issue." Motion Requesting a Briefing Schedule at 3. However, upon our review of the record, we find that the record is sufficient to resolve whether the proposal constitutes an appropriate arrangement. Moreover, we note that under the Authority's regulations, 5 C.F.R. § 2424.32, the parties bear the burden of raising and supporting their arguments to the Authority when filing their initial submissions. We therefore deny the Union's request for supplemental briefing.

V.      Positions of the Parties [n2] 

A.     Agency

      With respect to the issue before the Authority on remand, the Agency argues that the proposal is not an appropriate arrangement because it would excessively interfere with its right to determine its internal security practices. In this regard, the Agency argues that the proposal would excessively interfere with this right because the proposal would require it to allow "overnight storage at locations with inappropriate storage facilities[.]" Agency's Reply at 2. In addition, the Agency contends that the proposal would allow for overnight weapons storage in facilities that are not under the Agency's control and that may be unguarded. The Agency adds that it would "require considerable expense to create secure storage" which would be "an extremely costly and impractical venture." Statement of Position (SOP) at 2,6. Finally, the Agency argues that the proposal would require the Agency to allow the storage of weapons in facilities that may also store narcotics, and that this would increase the risk for "theft and other criminal activity." Id. at 4.

      The Agency also asserts that any perceived benefits to employees under the proposal are mitigated because employees can choose to carry firearms under its 24-hour carry policy, which the Agency argues has only limited restrictions on what activities an employee may engage in while going to or leaving work. [n3]  Moreover, the Agency contends that the requirement that employees use gun locks for their weapons when storing them at home mitigates the risks associated with such storage.

      The Agency also argues that "the proposal excessively interferes with management's ability to assign work, specifically overtime." Id. at 7; 5 U.S.C. § 7106(a)(2)(B). The Agency states that employees who are called back to work an overtime shift "are expected to be armed and ready to report for duty." Id. It states that the proposal excessively interferes with this right because employees who must first retrieve firearms from their duty station "are not ready to report for duty." Id.

      Finally, citing AFGE, Local 1917, 4 FLRA 150 (1980) (Local 1917), the Agency contends that the proposal requires it to bargain over the technology, methods, and means of performing work under § 7106(b)(1) of the Statute. Agency's Reply at 1-2. According to the Agency, in Local 1917, the Authority held that a proposal requiring use of a lock box for storing firearms concerned the technology of performing work within the meaning of § 7106(b)(1). Based on that precedent, the Agency asserts that the proposal concerns a matter about which it may elect not to bargain under § 7106(b)(1), and that it chooses not to bargain.

B.     Union

      With respect to the Agency's assertion that the proposal affects its right to determine internal security practices, the Union argues that its proposal is an appropriate arrangement under § 7106(b)(3) of the Statute. The Union contends that employees are adversely affected by the Agency's decision to hold employees responsible for the storage of firearms during off-duty periods. Specifically, as adverse effects, the Union cites: (1) the risks to employees' families resulting from the requirement that employees store their firearms in their homes while off-duty; (2) the potential civil and/or criminal liability, and disciplinary action, that could [ v62 p323 ] result if the firearms are stolen from, or are misused by, family members in their homes; (3) the loss of freedom of movement because of the requirement that firearms be transported directly between home and work; (4) an increase in travel costs resulting from the need to deposit the firearm at home before accomplishing non-work activities and responsibilities; (5) the fear of possible assault for the purpose of taking the firearm when employees carry it in plain view on public transportation; and (6) the limitations upon and modifications to behavior and mobility that are required under the 24-hour carry policy. According to the Union, the proposal would provide employees a significant benefit by eliminating, or reducing, the impact of these adverse effects.

      The Union disputes the Agency's claim that the proposal would not result in a significant benefit to employees in terms of their freedom of movement. Specifically, the Union disagrees with the Agency's assessment of the significance of the 24-hour carry policy, arguing that the 24-hour carry policy is voluntary and that many employees choose not to invoke that authority because of the burdens imposed by the Agency on those who do so. As the Union notes, the 24-hour carry policy states that: (1) "th[e] authority presents a tremendous responsibility and has potential for significant liabilities [for] the individual officer[;]" (2) employees' "behavior must be significantly modified while armed[;]" and (3) there are "major restrictions in behavior and limitations on mobility[.]" Union Response at 2 (quoting the 24-hour carry policy). See Appendix in NTEU I, 59 FLRA at 756. The Union asserts that the proposal provides a more significant benefit to employees in terms of freedom of movement and level of employee responsibility than the Agency has demonstrated under the 24-hour carry policy.

      As to the impact of the proposal on the Agency's internal security interests, the Union claims that the Agency's assertion of increased risk at those facilities as a result of the proposal is speculative and unsupported. In this regard, the Union states that Treasury policy requires the Agency to provide storage facilities at all Agency facilities during duty hours and that the proposal does not affect the Agency's ability to determine the level of security afforded by the storage it provides. The Union notes that the Agency previously allowed storage of firearms at its work sites during off-duty hours and continues to do so at several locations. Union's Response at 4. The Union also asserts that the Agency has provided no evidence that storage of firearms at those facilities resulted in security problems.

      The Union also argues that the proposal does not affect the Agency's right to assign work. In this respect, the Union argues that the proposal does not address "whether impacted employees will retrieve their firearms during on-duty or off-duty hours[,]" and that the proposal itself merely "provides for negotiations over whether secure containers will be located where employees work or are assigned." Id. at 11.

      Finally, the Union contends that the proposal does not concern the technology, methods, or means of performing the Agency's work. Specifically, the Union argues that, under Treasury policy, it is the Agency that has required the use of a lock box or other secure storage at these facilities during working hours, and employees should be allowed to use these lock boxes during non-duty hours. Response at 6. According to the Union, it merely seeks to negotiate over the use of those lock boxes.

VI.      Meaning of the Proposal

      As set forth in NTEU I, 59 FLRA at 752-53, the proposal would permit the overnight storage of Agency-authorized firearms in a lock box or other secure storage container at all Agency offices where armed employees work or are assigned. Further, the proposal: (1) affords the Agency discretion to determine the type of container provided, as long as it complies with the standard of security set forth in the proposal; (2) by using the term "overnight," allows employees to store their firearms in the secure container during off-duty hours and on weekends; (3) permits employees working a midnight to morning shift to store their firearms during the day; and (4) by referencing "government offices," applies wherever bargaining unit employees regularly work. Id. The parties also agreed that the proposal allows employees to retrieve their firearms during off-duty hours. Id. In this regard, "the Union explained further that `employees who choose to store their firearms during their non-work hours would most likely leave their firearms in the container until they resumed duty status.'" Id.

VII.      Analysis and Conclusions

A.      The proposal is an appropriate arrangement

      In NTEU I, 59 FLRA at 753-54, the Authority determined that the proposal affects management's right to determine its internal security practices under § 7106(a)(1) of the Statute and that the proposal does not constitute a procedure under § 7106(b)(2) of the Statute. As noted above, the court affirmed the determinations of the Authority on both of these issues. NTEU II, 404 F.3d at 457. However, the court found that the Authority had not explained whether the proposal constitutes an appropriate arrangement based upon the record before the Authority. Id. at 458.

      [ v62 p324 ] In resolving whether a proposal is an appropriate arrangement, the Authority applies the standard set forth 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. See KANG, 21 FLRA at 31. 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). 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., NFFE, Local 2015, 53 FLRA 967, 973 (1997). If a proposal is determined to be an arrangement, then the Authority determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right. See KANG, 21 FLRA at 31-33. In doing so, the Authority weighs the benefits afforded employees under the arrangement against the intrusion on the exercise of management's rights. See id.

      As set forth above, the court did not disturb the Authority's finding that the proposal constitutes an arrangement that is sufficiently tailored. See NTEU I, 59 FLRA at 754. Accordingly, the Authority must determine whether the proposal is appropriate, or whether it is inappropriate because it excessively interferes with the Agency's right to determine its internal security practices.

      In applying the excessive interference test, we first note that the Agency initially argued that as part of its internal security determinations "Customs policy and practice have never authorized routine overnight storage of issued firearms in employees' work locations." SOP at 4. However, in its reply, the Agency conceded that it "does allow routing overnight storage in certain locations where appropriate storage is available." [n4]  Agency's Reply at 2. Accordingly, the Authority will resolve the remaining issue consistent with the court's statement that "[t]he most the proposal would require is the institution at other facilities of a method of carrying out agency internal security policies already in place at some locations." NTEU II, 404 F.3d at 458.

      The Agency describes its internal security policy as a policy that will not permit routine overnight storage of firearms "at locations with inappropriate storage facilities[.]" Agency's Reply at 2. The Agency also makes the following general claims concerning the burdens the proposal would place upon that Agency's right to determine its internal security practices. It argues that: (1) it would cost too much to secure these facilities; (2) some facilities are not under Customs' control; (3) some facilities are unguarded during off-duty hours; (4) storing firearms at facilities, especially where seized evidence such as narcotics is also stored, could increase the potential for theft; and (5) a facility, even one under the Agency's control, may not have sufficient security to provide overnight storage. SOP at 4.

      Contrary to the Agency's argument, the proposal itself only requires storage of firearms in a "lockbox or other secure and locked container[.]" It does not, as the Agency argues, require storage of firearms in unsuitable containers. As such, the Agency has not substantiated its claim that the proposal would require it to allow storage in "inappropriate storage facilities," and, thus, that argument is inapposite because the proposal allows storage only in containers the Agency deems secure. Id. at 1, 2.

      Second, the Agency argues generally that many of its locations cannot be secured because of cost. SOP at 2, 6. However, the Agency does not provide information on the costs of securing these locations and the Agency does not argue that the proposal affects its right to determine its budget under § 7106(a). As we stated in National Federation of Federal Employees, Local 1904, 57 FLRA 28, 30 n.5 (2001), in a similar appropriate arrangement context, "when considering cost arguments in contexts other than management's budget right under section 7106(a)(1), . . . an agency is not exempt from the obligation to bargain over a union proposal solely because th[e] proposal may result in some increase in cost." Id., citing AFGE, Local 1122, 47 FLRA 272, 283 (1993) (Local 1122). See also United States Dep't of Transp., Fed. Aviation Admin., Washington, D.C., 55 FLRA 322, 326-27 (1999) (agency may not establish that its right to determine its budget is affected by a bare assertion). Accordingly, we reject the Agency's reliance upon the costs of securing certain of its locations to demonstrate the burden the proposal would place on the Agency's right to determine its internal security practices.

      With respect to the Agency's second and third arguments, the record shows, as set forth above, that the Agency already allows the overnight storage of firearms in some of its facilities, and it does not dispute that these [ v62 p325 ] facilities include airports that are not under Agency control and certain ports and airports that are not manned on a 24-hour basis. Union's Response at 11-12; Agency's Reply at 2. Accordingly, because the Agency provides secure overnight storage for employee firearms at facilities that are not under Agency control or manned on a 24-hour basis, we find that the Agency has failed to explain how the proposal would significantly burden the exercise of its right to determine its internal security in those circumstances. See, e.g., NTEU, 61 FLRA 48, 51 (2005) (an agency has the burden of articulating why it cannot allow a particular agency-approved security policy at other locations.)

      Additionally, as to its fourth argument, the Agency has not explained why it would be a burden to provide appropriate security if stored firearms were placed in Agency-approved lockboxes co-located near seized narcotics. In this regard, the Agency has provided no evidence that it has experienced security problems in areas where seized narcotics are stored. Cf. NFFE, Local 2050, 36 FLRA 618, 628, 653-54 (1990) (union provided evidence as to thefts from and assaults on employees in and around agency building to substantiate claim that proposed arrangement affecting the agency's right to determine internal security practices was appropriate). With respect its fifth argument, the Agency does not explain why it would be unable to provide sufficient security at its facilities to accommodate overnight storage of firearms other than by asserting that to do so would be costly, an argument that we have previously rejected.

      In sum, the Agency has not established that the proposal would constitute a significant burden on its right to determine its internal security practices.

      In contrast, the Union relies on various benefits to employees from allowing overnight storage of firearms. Specifically, it asserts that such storage would: (1) reduce the risk of civil/criminal liability and disciplinary action; (2) allow greater freedom of movement for employees; (3) reduce the increase in travel costs that results from having to first go straight from work to home before engaging in other activities once the employee has secured the firearm at home; (4) reduce the possibility of public assault from a criminal trying to obtain a firearm; (5) allow employees to engage in activities after work without any modification in their behavior under the Agency's 24-hour carry policy; and (6) reduce the possibility of accidental shootings or theft of the weapon that might otherwise occur in the home. Consistent with these Union arguments, the Authority found in NTEU I, that the proposal would benefit employees because they would have the discretion to leave firearms at work rather than bringing them into their homes, thus avoiding any inherent risks associated with having those firearms in the home. See NTEU I, 59 FLRA at 755. Although this risk may, as the Agency argues, be partially offset by the use of gun locks and placing the weapon in secure storage at home, we find, as the Authority did in NTEU I, that because there is still an inherent risk associated with having weapons stored in the home, the employees would benefit under the proposal by having the discretion to leave their firearms in secure storage at work.

      Additionally, under the terms of the proposal, employees could choose to leave their firearms in secure storage at work rather than carry their firearms to or from work. In this respect, the Agency requires employees carrying their firearms in public to exercise the "highest degree of care against theft or loss," and notes the risk of "significant liabilit[y] to the individual officer" that would require an officer to significantly modify his or her behavior while armed. SOP at 3; NTEU I, 59 FLRA at 756. Accordingly, the proposal would benefit employees by allowing them to choose not to assume the risks associated with carrying a firearm while off-duty.

      In weighing the benefits to employees against the burdens placed upon the Agency's right to determine its internal security practices, we find that the record establishes significant benefits to employees from the proposal, including the discretion to eliminate the risks associated with storing firearms in the home and carrying firearms while off-duty. In contrast, the Agency has failed to support its claims that the proposal creates a significant burden upon the Agency's right to determine its internal security practices. See, e.g., Local 1122, 47 FLRA at 283 (parties act at their own peril if they fail to support their claims as to a proposal's benefits to employees or the burdens the proposal places on an agency.) As such, we hold that the proposal does not excessively interfere with the Agency's right to determine its internal security practices.

B.      The proposal does not affect the Agency's right to assign work

      The Authority has long held that management's right to assign work under § 7106(a)(2)(B) of the Statute includes 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, e.g., Nat'l Weather Serv. Employees Org., 37 FLRA 392, 399 (1990); AFGE, Local 85, 32 FLRA 210, 216 (1988).

      [ v62 p326 ] Here, the proposal directly addresses only the manner in which the Agency will store employee firearms during non-work periods. It does determine when, where, whether, or how the Agency will assign work. In this respect, the proposal is silent as to whether employees would retrieve their firearms prior to an overtime assignment, for example, or whether employees would retrieve them at the beginning of such an assignment. Any delay involved would result not from the proposal, but from the amount of notice provided the employee by the Agency. The proposal thus does not affect management's right to assign work within the meaning of § 7106(a)(2)(B) of the Statute. See id.; see also AFGE, Local 1698, 38 FLRA 1016, 1023 (1990) (only proposals that directly and integrally go to the specified right are barred from negotiation; proposals that indirectly affect a right are not precluded); POPA, 47 FLRA 10, 46 (1993). Accordingly, as the proposal does not affect the Agency's right to assign work, we reject the Agency's claim that the proposal is outside the duty to bargain on this ground.

C.      The proposal does not affect the Agency's right to determine the technology, methods, and means of performing work under § 7106(b)(1)

      Finally, pursuant to AFGE, HUD Council of Locals 222, Local 2910, 54 FLRA 171, 178-79 (1998), it is necessary to consider whether the proposal constitutes a matter over which the Agency may elect to bargain under § 7106(b)(1) of the Statute. Although neither the Statute nor the legislative history define "technology . . . of performing work," the Authority has defined the phrase as "the technical method that will be used in accomplishing or furthering the performance of the [a]gency's work."  AFSCME, AFL-CIO, Local 2477, 7 FLRA 578, 582-83 (1982). Further, the Authority has construed the term "method" to refer to "the way in which an agency performs its work." AFGE, Local 1920, 47 FLRA 340, 343 (1993). The Authority has defined the term "means" to refer to "any instrumentality, including an agent, tool, device, measure, plan, or policy used by an agency for the accomplishment or [the] furtherance of the performance of its work." Id. The legislative history of the Statute indicates that the term "methods" was intended to mean "how" work is performed; the term "means" was intended to mean "with what." See Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, U.S.C.C.A.N. 2830, 2831; see also GSA, 54 FLRA 1582, 1590 n.6 (1998).

      Here, as the Union points out, the Agency has already exercised its discretion under § 7106(b)(1) to require a lockbox or a secure alternative for employee storage of their firearms while on-duty. The Union seeks to negotiate over only the scope of the use of such storage. Thus, rather than negotiating over the technology, methods, or means of performing the Agency's work, as claimed by the Agency, the proposal merely involves bargaining over the implementation of the Agency's choice of a particular technology, method, or means, i.e., a lockbox or other secure storage. Cf. Local 1917, 4 FLRA at 154. As such, the proposal does not affect the Agency's right to determine the technology, methods, and means of performing work under § 7106(b)(1) of the Statute.  [n5] 

VIII.     Order

      The Agency shall, on request, bargain as to the proposal. [n6] 


File 1: Authority's Decision in 62 FLRA No. 56
File 2: Opinion of Chairman Cabaniss <