National Treasury Employees Union and NTEU Chapter 61 (Union) and Department of the Treasury, Internal Revenue Service, Albany District, New York (Agency)  

 7 FLRA No. 47
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NTEU CHAPTER 61
 Union
 
 and
 
 DEPARTMENT OF THE TREASURY,
 INTERNAL REVENUE SERVICE,
 ALBANY DISTRICT, NEW YORK
 Agency
 
                                            Case No. O-NG-238
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5
 U.S.C. 7101 ET SEQ.).  THE ISSUE PRESENTED IS THE NEGOTIABILITY OF THE
 UNION'S PROPOSAL WHICH SEEKS TO NEGOTIATE ADDITIONS AND DELETIONS TO A
 PROPOSED AGENCY DIRECTIVE ENTITLED, "IMPLEMENTATION PROCEDURES FOR THE
 CONDUCT OF AFTER-HOURS SECURITY CHECKS/ENTRY INTO UNLOCKED DESK DRAWERS
 AND FILE CABINETS." THE AGENCY'S DIRECTIVE, SET OUT IN APPENDIX A,
 HERETO, WOULD ESTABLISH A PROCEDURE FOR THE AGENCY TO SEARCH, AFTER
 HOURS, THE DESKS AND FILE CABINETS OF EMPLOYEES, IF FOUND TO BE
 UNLOCKED, TO SEE IF ANY "PROTECTED" MATERIAL WAS LEFT INSIDE.  ANY
 PROTECTED MATERIAL SO FOUND WOULD BE REMOVED AND SECURED ELSEWHERE.  THE
 UNION'S PROPOSAL, SET OUT IN APPENDIX B, HERETO, WOULD REQUIRE THE
 AGENCY, INSTEAD, SIMPLY TO SECURE ALL UNLOCKED DESKS AND FILE CABINETS
 WITHOUT SEARCHING DESKS AT THAT TIME TO SEE IF ANY PROTECTED MATERIAL
 WAS ACTUALLY INSIDE.  THE SEARCH FOR PROTECTED MATERIAL IN THE UNLOCKED
 DESKS, UNDER THE PROPOSAL, WOULD BE POSTPONED UNTIL THE INDIVIDUAL WHO
 NORMALLY USES THE DESK IS PRESENT FOR THE SEARCH.  FURTHERMORE, THE
 UNION'S PROPOSAL WOULD DELAY THE IMPLEMENTATION DATE OF THE AGENCY'S
 DIRECTIVE UNTIL AFTER AGREEMENT OR IMPASSE OVER THE UNION'S PROPOSED
 CHANGES.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSED PROCEDURE AND DELAY OF
 IMPLEMENTATION IS INCONSISTENT WITH THE AGENCY'S RIGHTS TO DETERMINE ITS
 INTERNAL SECURITY PRACTICES UNDER SECTION 7106(A)(1) OF THE STATUTE
 AND/OR TO DETERMINE THE METHODS AND MEANS OF PERFORMING ITS WORK UNDER
 SECTION 7106(B)(1) OF THE STATUTE, AS ALLEGED BY THE AGENCY.  /1/
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE AGENCY HAS NOT ESTABLISHED THAT THE
 UNION'S PROPOSAL WOULD BE INCONSISTENT WITH THE AGENCY'S RIGHTS UNDER
 SECTION 7106(A)(1) OR SECTION 7106(B)(1) OF THE STATUTE.  ACCORDINGLY,
 PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5
 CFR 2424.10 (1981)), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST
 (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING THE
 UNION'S PROPOSAL.  /2/
 
    REASONS:  THE UNION TACITLY CONCEDES THAT THE AGENCY'S DIRECTIVE AND
 THE DISPUTED PROPOSAL ARE CONCERNED WITH INTERNAL SECURITY PRACTICES
 WHICH THE AGENCY HAS STATUTORY AUTHORITY TO DETERMINE.  IT CONTENDS,
 HOWEVER, THAT THE PROPOSAL IS NOT INCONSISTENT WITH MANAGEMENT'S
 AUTHORITY AND IS WITHIN THE DUTY TO BARGAIN, AMONG OTHER REASONS,
 BECAUSE IT CONCERNS ONLY THE PROCEDURE WHICH MANAGEMENT OFFICIALS WILL
 OBSERVE IN EXERCISING THEIR RESERVED AUTHORITY UNDER THE STATUTE WITH
 RESPECT TO THE INTERNAL SECURITY PRACTICE INVOLVED.  /3/
 
    IT IS WELL ESTABLISHED THAT PROCEDURES TO BE OBSERVED BY MANAGEMENT
 OFFICIALS IN THE EXERCISE OF THEIR STATUTORY AUTHORITY UNDER SECTION
 7106 ARE WITHIN THE DUTY TO BARGAIN UNLESS, IF ADOPTED, THEY WOULD DENY
 SUCH AUTHORITY BY PREVENTING THE AGENCY FROM ACTING AT ALL TO EXERCISE
 IT.  /4/ THE RECORD SHOWS THAT THE AGENCY IS REQUIRED TO SAFEGUARD THE
 CONFIDENTIALITY OF ITS FILES AND MATERIALS RELATING TO TAX RETURNS, TAX
 RETURN INFORMATION, AND TAXPAYER RETURN INFORMATION.  SEE 26 U.S.C.
 6103.  TO CARRY OUT ITS OBLIGATION TO PROTECT SUCH INFORMATION FROM
 UNLAWFUL DISCLOSURE, THE AGENCY INSTRUCTED EMPLOYEES TO PLACE PROTECTED
 MATERIAL IN THEIR CUSTODY IN LOCKED SPACE AT THE END OF EACH DAY.
 FURTHER, AS PREVIOUSLY DESCRIBED HEREIN, TO MONITOR COMPLIANCE WITH THIS
 INSTRUCTION THE AGENCY DETERMINED AS PART OF ITS INTERNAL SECURITY
 PRACTICES TO CONDUCT AFTER HOURS SECURITY CHECKS OF DESKS AND CABINETS
 TO SEE IF THEY ARE LOCKED AND, IN THE PROCESS, TO PROPERLY SECURE ANY
 IMPROPERLY STORED PROTECTED INFORMATION, I.E., THE TAX RELATED
 INFORMATION REFERRED TO ABOVE.  THUS, THE SECURITY CHECK IS DESIGNED TO
 ACCOMPLISH THE DUAL OBJECTIVES OF DETECTING SECURITY RISKS, I.E.,
 IMPROPERLY STORED MATERIAL, AND APPLYING PROTECTIVE MEASURES, I.E.,
 SECURE STORAGE, WHERE NECESSARY.
 
    TURNING TO THE DISPUTED PROPOSAL, IT WOULD NOT BY ITS TERMS PREVENT
 THE AGENCY FROM ACTING TO CONDUCT CHECKS TO REVEAL SECURITY RISKS POSED
 BY UNLOCKED DESKS AND CABINETS.  NEITHER WOULD IT, BY ITS TERMS, PREVENT
 THE AGENCY FROM ACTING TO SAFEGUARD THE PROTECTED MATERIAL WHICH MAY BE
 CONTAINED IN SUCH UNLOCKED DESKS AND CABINETS.  RATHER, THE PROPOSAL
 MERELY WOULD MODIFY THE PROCEDURE BY WHICH MANAGEMENT COULD ATTAIN THE
 LATTER OBJECTIVE BY REQUIRING THE AGENCY TO POSTPONE SEARCHING THE
 CONTENTS OF AN EMPLOYEE'S UNLOCKED DESK UNTIL THE EMPLOYEE IS PRESENT.
 THIS PROCEDURAL MODIFICATION WOULD BE CONSISTENT WITH THE AGENCY'S
 INTERNAL SECURITY PRACTICE OBJECTIVES SO LONG AS THE AGENCY COULD LOCK
 DESKS AND CABINETS IT FINDS UNLOCKED AND, WITH RESPECT TO DESKS, DO SO
 IN A MANNER ASSURING THE CONTENTS WOULD NOT BE ALTERED BEFORE THE
 SUBSEQUENT SEARCH IN THE EMPLOYEE'S PRESENCE.  THE AGENCY DOES NOT CLAIM
 IT IS INCAPABLE OF FOLLOWING THIS PROCEDURE AND ADDUCES NO OTHER
 RELEVANT INFORMATION THAT WOULD SUPPORT A FINDING THAT THE PROPOSAL
 NECESSARILY WOULD PRECLUDE ACHIEVING THE OBJECTIVES OF THE INTERNAL
 SECURITY PRACTICE IN QUESTION.  HENCE, IN THE ABSENCE OF A SHOWING THAT
 THE UNION'S PROPOSAL COULD NOT BE IMPLEMENTED CONSISTENT WITH LAW AND
 REGULATION IN A MANNER WHICH WOULD ALLOW THE AGENCY TO ACHIEVE ITS
 LEGITIMATE INTERNAL SECURITY OBJECTIVES, IT IS CONCLUDED THAT THE
 PROPOSAL IS WITHIN THE DUTY TO BARGAIN UNDER SECTION 7106(B)(2) OF THE
 STATUTE AS IT CONSTITUTES A PROCEDURE WHICH MANAGEMENT OFFICIALS WILL
 OBSERVE IN EXERCISING THEIR STATUTORY AUTHORITY CONCERNING INTERNAL
 SECURITY PRACTICES.  /5/
 
    AS TO THE AGENCY'S ALTERNATIVE CLAIM THAT THE PROPOSAL WOULD BE
 INCONSISTENT WITH THE AGENCY'S STATUTORY AUTHORITY UNDER SECTION
 7106(B)(1) TO DETERMINE THE METHODS AND MEANS OF PERFORMING WORK, IT
 SIMILARLY CANNOT BE SUSTAINED.  ASSUMING WITHOUT DECIDING THAT THE
 AGENCY DIRECTIVE AND UNION PROPOSAL ARE CONCERNED WITH SUCH METHODS AND
 MEANS, THE PROPOSAL LIKEWISE COULD BE IMPLEMENTED CONSISTENT WITH LAW
 AND REGULATION IN A MANNER WHICH WOULD ALLOW THE AGENCY TO ACHIEVE THE
 OBJECTIVES OF SUCH METHODS AND MEANS.  /6/
 
    FINALLY, THE ASPECT OF THE PROPOSAL DELAYING IMPLEMENTATION OF THE
 NEW PRACTICE UNTIL THE PARTIES AGREE TO OR REACH IMPASSE ON THE PROPOSED
 CHANGES DOES NOT ALTER THIS RESULT.  AS PREVIOUSLY ESTABLISHED IN
 DECISIONS OF THE AUTHORITY, CONGRESS DID NOT INTEND DELAY TO BE A BASIS
 UNDER THE STATUTE FOR HOLDING A UNION'S PROPOSED PROCEDURE TO BE OUTSIDE
 THE DUTY TO BARGAIN.  /7/
 
    IN CONCLUSION, THE AUTHORITY FINDS THE UNION'S PROPOSED PROCEDURAL
 CHANGES TO THE AGENCY'S INTERNAL SECURITY PRACTICE, AS WELL AS THE
 PROPOSED DELAY IN THE IMPLEMENTATION OF SUCH PRACTICE, TO BE WITHIN THE
 DUTY TO BARGAIN UNDER SECTION 7106(B)(2) OF THE STATUTE.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 8, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                APPENDIX A
 
         IMPLEMENTATION PROCEDURES FOR THE CONDUCT OF AFTER-HOURS
 
                              SECURITY CHECKS
 
            ENTRY INTO UNLOCKED DESK DRAWERS AND FILE CABINETS
 
                  (IMPLEMENTATION DATE - JANUARY 2, 1980)
 
    PURPOSE:
 
    TO INSURE THAT ALL PROTECTED INFORMATION LISTED IN EXHIBIT 500-2, IRM
 1(16)41, IS AFFORDED ADEQUATE PROTECTION.  SINCE DESKS AND FILE STORAGE
 EQUIPMENT IN ACCORDANCE WITH EXHIBIT 500-1, IRM 1(16)41, THEY ARE
 SUBJECT TO THE SCOPE OF THE AFTER-HOURS SECURITY CHECK.  ADDITIONALLY,
 ALL PROTECTED INFORMATION LEFT IN AN EXPOSED AND/OR UNSECURE POSTURE
 AFTER DUTY HOURS IS SUBJECT TO THE SCOPE OF THIS SECURITY CHECK,
 REGARDLESS OF WHAT TYPE OF FILE STORAGE EQUIPMENT IS INVOLVED.
 
    SCHEDULE OF EVENTS:
 
    NOVEMBER 15, 1979 - DISSEMINATE ALL EMPLOYEE MEMORANDUM TO INFORM
 DISTRICT EMPLOYEES OF THE NATURE OF THE SECURITY PROGRAM AND OF
 PROCEDURES TO BE IMPLEMENTED.  ADDITIONALLY, INFORM DISTRICT EMPLOYEES
 THAT IF DESKS OR FILE CABINETS THAT ARE USED FOR THE STORAGE OF
 PROTECTED MATERIAL ARE IN NONFUNCTION CONDITION, THAT FACILITIES
 MANAGEMENT WILL HONOR SUPERVISORY REQUESTS TO TAKE APPROPRIATE
 MAINTENANCE ACTION.
 
    JANUARY 2, 1980 - EFFECTIVE DATE OF IMPLEMENTATION.
 
            PROCEDURES TO BE FOLLOWED DURING THE CONDUCT OF AN
 
                        AFTER-HOURS SECURITY CHECK
 
    - DESKS AND FILE CABINETS WILL BE CHECKED TO INSURE WHETHER OR NOT
 THEY ARE IN A LOCKED
 
    CONDITION.
 
    - IF AN UNLOCKED DESK OR FILE CABINET IS NOT FOUND TO HAVE ANY
 PROTECTED INFORMATION
 
    CONTAINED THEREIN, NO ACTION WILL BE TAKEN.
 
    - WHEN DESK DRAWERS AND FILE CABINETS ARE FOUND UNLOCKED AND CONTAIN
 PROTECTED INFORMATION
 
    (EXHIBIT 500-2, IRM 1(16)41, THE REVIEWING OFFICIAL WILL REMOVE THE
 PROTECTED INFORMATION FROM
 
    THE DESK.  A NOTIFICATION WILL BE LEFT ON THE EMPLOYEE'S DESK AND THE
 APPROPRIATE MANAGER'S
 
    DESK AND THE REVIEWING OFFICIAL WILL PROPERLY SECURE THE PROTECTED
 INFORMATION. THE PROTECTED
 
    INFORMATION WILL BE RETURNED TO THE MANAGER CONCERNED THE FOLLOWING
 MORNING AT WHICH TIME HE
 
    WILL BE NOTIFIED OF THE DETAILS OF THE SPECIFIC DEFICIENCY.
 
                                APPENDIX B
 
                                 PROPOSAL
 
    TITLE:  REMOVE 2ND LINE IN ITS ENTIRETY.
 
    PURPOSE:  NO CHANGE.
 
    SCHEDULE OF EVENTS:  REMOVE DATES UNTIL AFTER AGREEMENT OR IMPASSE.
 
    PROCEDURES TO BE FOLLOWED DURING THE CONDUCT OF AN AFTER HOURS
 SECURITY CHECK:
 
    REMOVE 2ND PARAGRAPH.
 
    3RD PARAGRAPH, 1ST SENTENCE - REMOVE ALL AFTER 1ST LINE THAT READS:
 " . . . FOUND
 
    UNLOCKED."
 
    3RD PARAGRAPH, 2ND SENTENCE - ADD TO END OF PRESENT SENTENCE:  " . .
 . WITHOUT REMOVING
 
    CONTENTS."
 
    3RD PARAGRAPH -- REMOVE THE LAST SENTENCE IN ITS ENTIRETY.
 
    ADD 4TH PARAGRAPH:
 
    "THE CONSTITUTIONAL RIGHTS TO PRIVACY OF EMPLOYEES WILL NOT BE
 VIOLATED, THEREFORE, UNDER NO CIRCUMSTANCES WILL ANYONE LOCK INTO OR
 ENTER INTO ANY DESK OF ANY EMPLOYEE EXCEPT IN THE PRESENCE OF THE
 INDIVIDUAL WHO NORMALLY USES THE DESK."
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SECTION 7106(A)(1) AND SECTION 7106(B)(1) OF THE STATUTE PROVIDE,
 IN PERTINENT PART:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY
 AGENCY--
 
    (1) TO DETERMINE THE . . . INTERNAL SECURITY PRACTICES OF THE AGENCY
 . . . .
 
   .          .          .          .
 
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
    (1) AT THE ELECTION OF THE AGENCY, ON THE . . . METHODS, AND MEANS OF
 PERFORMING WORK
 
    . . . .
 
    /2/ IN SO DECIDING THAT THE UNION'S PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THE MERITS OF
 THE PROPOSAL.
 
    /3/ SECTION 7106(B)(2) OF THE STATUTE PROVIDES, IN PERTINENT PART:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
   .          .          .          .
 
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM NEGOTIATING--
 
   .          .          .          .
 
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY
 
    AUTHORITY UNDER THIS SECTION . . .
 
    /4/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999
 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW
 JERSEY, 2 FLRA NO.  16(1979), AT 2-6 OF THE DECISION, ENFORCED SUB NOM.
 DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY . . . F.2D .
 . . (D.C. CIR. 1981).
 
    /5/ THE CASE INVOLVES AN INTERNAL SECURITY PRACTICE ONLY CONCERNING
 THE SECURITY REPRESENTED BY LOCKED DESKS AND FILE CABINETS UNDER THE
 CONTROL OF INDIVIDUAL EMPLOYEES AND THIS DECISION WOULD NOT BE
 DISPOSITIVE IN OTHER CIRCUMSTANCES INVOLVING STRICTER INTERNAL SECURITY
 PRACTICES SUCH AS THOSE CONCERNED WITH A SPECIAL SECURITY ROOM, VAULT OR
 SAFE.
 
    /6/ SEE NATIONAL TREASURY EMPLOYEES UNION AND U.S. CUSTOMS SERVICE,
 REGION VIII, SAN FRANCISCO, CALIFORNIA, 2 FLRA NO. 30(1979);  BUT SEE
 NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL REVENUE SERVICE, 6 FLRA
 NO. 98(1981) AT 4-7.
 
    /7/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
 AND AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO,
 2 FLRA NO. 77(1980), AT 20-23 OF THE DECISION, ENFORCED SUB NOM.
 DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, . . . F.2D .
 . . (D.C. CIR.1981);  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE
 EXCHANGE, FORT DIX, NEW JERSEY, 2 FLRA NO. 16(1979), AT 2-6 OF THE
 DECISION, ENFORCED SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR
 RELATIONS AUTHORITY, . . . F.2D . . . (D.C. CIR. 1981).