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55 FLRA No. 16
Dept. of the Treasury U.S. Customs Service El Paso, Texas and NTEU, Chapter 143 and Dept. of the Treasury U.S. Customs Service New Orleans, Louisiana and NTEU, Chapter 168, Case No. DA-CA-60047 and DA- CA-60048 (Decided December 31, 1998)
The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Statute by initiating the video tape recording of employee interviews during Internal Affairs (IA) investigations at two of Respondent's facilities without providing the Union with notice and an opportunity to bargain over the change in conditions of employment. The Judge concluded that the Respondent violated the Statute as alleged. The Authority adopted the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision.
Preliminarily, the Authority concluded that the charges were timely. The Authority noted that section 7118(a)(4)(A) of the Statute requires that a charge be filed within six months of the alleged unfair labor practice. The Authority adopted the Judge's conclusion that the Union filed its unfair labor practice charges within six months of discovery by the Union's national and/or regional officers that the Respondent was videotaping employees during IA interviews.
The Authority also found that the Judge properly applied Authority precedent in reaching his conclusion that the matter in question was not covered by the parties' agreement. The Authority restated its three-pronged test for determining whether a particular change in conditions of employment is "covered by" the existing collective bargaining agreement between the parties. The Authority noted that it first looks to the "express language" of the agreement to ascertain whether it reasonably encompasses the subject in dispute. If neither of these steps leads to the conclusion that further negotiations on the subject are foreclosed, the Authority proceeds to the third step of the analysis, which is to examine the parties' intent.
Here, the Authority agreed with the Judge's conclusion that the express language of the parties' agreement did not address videotaping because video was not mentioned and the term "tape recording" covered only audio taping when the parties negotiated the provision in 1980. The Authority concluded that review of the record supported the Judge's determination that the disputed matter was not "covered by" the Agreement.
The Authority also concluded that the video tape recording of employees during internal affairs investigations may be but is not necessarily an internal security practice under section 7106(a)(1) of the Statute. The Authority noted that section 7106(a)(1) of the Statute provides, in relevant part, that management has a right to determine the internal security practices of the agency. This right includes the policing of its own employees.
The Authority noted that the question to be resolved was whether the Respondent established a reasonable connection between its decision to videotape employee interviews and the objective of safeguarding its personnel, property or operations. The Authority found that the Judge did not determined whether the Respondent established a reasonable connection between its decision to videotape employee interviews and its objective of safeguarding the Agency's personnel, property or operations. Accordingly, the case was remanded to the Judge for that purpose.