[ v42 p1295 ]
The decision of the Authority follows:
42 FLRA No. 89
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). This case concerns the negotiability of two provisions of a negotiated agreement that were disapproved by the Agency head under section 7114(c) of the Statute.
For the reasons that follow, we conclude that Provision 1, which concerns searches of employees' personal property, is nonnegotiable because it directly interferes with management's right under section 7106(a)(1) to determine its internal security practices. Provision 2, which concerns precautions to be taken to avoid physical harm to employees and their families, is nonnegotiable because it directly interferes with management's right to determine its internal security practices.
II. Provision 1
Article 6. Section E. Recognizing the Employer's legal rights to search the personal property of any employee when such property is on the grounds of the Federal Reservation, such search shall be conducted in accordance with current laws and regulations. Such search will be witnessed by the employee owner of searched property and or that employee's representative of his/her choice. [Only the underlined portion of this provision is in dispute].
A. Positions of the Parties
1. The Agency
The Agency cites three reasons for its argument that this provision is nonnegotiable. The Agency contends that the provision: (1) interferes with management's rights under section 7106(a) of the Statute to determine its internal security practices and to discipline employees; (2) is inconsistent with a Government-wide regulation; and (3) contravenes 5 U.S.C. Appendix 3.
As to the first claim, the Agency contends that unannounced searches of employees' personal property where an internal security concern is present come within the ambit of management's right to determine its internal security practices. In this regard, the Agency asserts that both the courts and the Authority have generally recognized that the internal security concerns of correctional facilities are particularly serious in nature. The Agency argues that, accordingly, conclusions reached with respect to searches of employees' personal property in other contexts do not necessarily apply in the context of correctional facilities.
The Agency argues that this provision might result in the delay of a search, which could be critical in terms of compromising the Agency's ability to ensure the integrity and security of its operations. As an example, the Agency cites its need to ascertain immediately whether a parcel that is left where inmates have access to it contains a weapon. Additionally, the Agency contends that by requiring it to notify an employee of its intention to search his or her property, the provision, in some instances, would prevent it from determining whether the property contains contraband and then "staking out" the location in order to "catch the employee in the act of dealing with inmates and at the same time identify the employee's unknown confederates when they come to pick up the contraband." Agency statement of position at 10-11. In support of this latter point the Agency cites the Authority's decision in Department of the Treasury, Internal Revenue Service, Jacksonville District and Department of the Treasury, Internal Revenue Service, Southeast Regional Office of Inspection, 23 FLRA 876 (1986) (IRS, Jacksonville District), in which the Authority held that preventing an agency from engaging in unannounced surveillance of allegedly dishonest employees would unduly interfere with management's right under section 7106(a)(1) to determine its internal security practices.
Thus, the Agency contends that to the extent that this provision would preclude the Bureau of Prisons from conducting administrative searches of personal property brought into the facility without first notifying the employee owner, it interferes with management's right to determine its internal security practices. Alternatively, the Agency contends, without further explanation, that the provision interferes with management's right to discipline employees.
Second, the Agency contends that this provision is inconsistent with a Government-wide regulation. In this regard, the Agency contends that 18 U.S.C. § 4001(b)(1) authorizes the promulgation of rules for the control and management of Federal correctional institutions. The Agency states that among the rules promulgated under this authority, which has been delegated to the Bureau of Prisons, is Correctional Services Program Statement No. 5510.3, entitled "Searching/Detaining Non-Inmates." The Agency describes the intent of this regulation as providing for immediate searches of items of personal property regardless of whether the employee owner is present. According to the Agency, this provision "impermissibly amends" those regulations "by adding a precondition which must be met before local [management] may conduct searches of items of personal property which employees bring into the facility." Agency statement of position at 13-14. The Agency asserts that these regulations are Government-wide in nature or "otherwise sufficient to bar negotiations." Id. at 14. In making this assertion, the Agency argues that the Authority's test for determining what constitutes a Government-wide regulation is too narrow to be consistent with the purpose of Congress in enacting section 7117(a) of the Statute.
Third, the Agency contends that this provision contravenes 5 U.S.C. Appendix 3.(1) The Agency states that the Inspector General of the Department of Justice is in charge of investigations in cases involving contraband. Relying on National Federation of Federal Employees, Local 1300 and General Services Administration, 18 FLRA 789 (1985) (GSA), the Agency argues that the Bureau of Prisons cannot, through a collective bargaining agreement, bind the Inspector General to procedures that will be used in Inspector General investigations. Consequently, the Agency asserts that the provision is beyond the authority of the local activity to negotiate and is contrary to 5 U.S.C. Appendix 3.
2. The Union
The Union did not file a response to the Agency's statement of position. However, in the petition, the Union states that it does not wish to limit management's right to search property. Rather, the Union states that it desires to avoid having "a member of Management . . . search the property of an employee without that search being witnessed by the Employee." Petition at 1. The Union states that the provision allows for a representative to witness the search in the event that the employee is being detained or otherwise cannot be present.
B. Analysis and Conclusions
Under section 7106(a)(1) of the Statute, the right to determine internal security practices includes an agency's right to determine the policies and practices that are necessary to safeguard its operations, personnel and physical property against internal or external risks. See, for example, National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 708 (1990) (EPA I). An agency's right to determine its internal security practices also includes the right to determine the investigative techniques the agency will use to achieve its internal security objectives. See, for example, American Federation of Government Employees, Local 1164 and U.S. Department of Health and Human Services, Social Security Administration, Lynn, Massachusetts, 35 FLRA 1193, 1197 (1990) (SSA, Lynn). Where an agency shows a link, or reasonable connection, between its goal of safeguarding its personnel, property, or operations and the practice or investigative technique designed to implement that goal, a proposal that directly interferes with the agency's practice or investigative technique conflicts with the agency's right under section 7106(a)(1). See, for example, id.
Here, the Agency asserts that it must, in some circumstances, engage in an unannounced search of employee property that is on its premises. The Agency contends that in some circumstances the Agency must ascertain whether the employee's property contains contraband without the employee's knowledge so that further investigation of the matter will not be compromised.
The Authority has previously held that proposals requiring that an employee's desk, file cabinets, or lockers not be searched unless the employee is present do not directly interfere with management's right to determine its internal security procedures, but, rather, constitute procedures that are negotiable under section 7106(b)(2). See, for example, American Federation of Government Employees, AFL-CIO, Local 1759 and Department of Defense, Department of the Army, Headquarters, Fort McPherson, Georgia, 29 FLRA 261 (1987) (Proposal 3); National Treasury Employees Union and NTEU Chapter 61 and Department of the Treasury, Internal Revenue Service, Albany District, New York, 7 FLRA 304 (1981) (IRS, Albany District). However, it should be noted that in finding that the proposal at issue in IRS, Albany District was negotiable, the Authority stated:
The Agency . . . 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[.]
7 FLRA at 307.
Here, information presented by the Agency supports a conclusion that requiring the Agency to notify an employee, in every instance, of the Agency's intention to search the employee's property for contraband would interfere with the Agency's ability to achieve its legitimate internal security objective of investigating the supply of contraband to inmates. Thus, the circumstances presented in this case warrant an exception to the conclusion generally reached in previous cases that proposals requiring that employees be present when their lockers, desks, and other property are searched are procedural and do not directly interfere with an agency's management right to determine its internal security practices. We conclude that in the circumstances presented in this case, the disputed portion of this provision directly interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.
This conclusion is consistent with the Authority's statement in American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut, 29 FLRA 990 1014 (1987) (FCI, Danbury), reversed as to other matters sub nom. U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut v. FLRA, No. 87-1762 (D.C. Cir. Aug. 9, 1990), that:
A Federal correctional facility is different from general office space. The Agency has special security concerns not routinely present in other work locations. At a correctional facility, internal security practices are of paramount importance, and the need to ensure that no unauthorized weapons or contraband are present is critical.
See also IRS, Jacksonville District, 23 FLRA 876 (1986). In that decision, the Authority stated that requiring union representation when the agency was monitoring employee telephone conversations with taxpayers would not comport with the surreptitious nature of the agency's surveillance activities and would unduly interfere with management's right under section 7106(a)(1) of the Statute to determine internal security practices. The Authority noted "[i]t would produce the anomalous prohibition that agencies could not engage in unannounced surveillance of allegedly dishonest employees as an investigative technique without first informing the employee of what was being done and providing an opportunity to request representation." Id. at 880.
To the extent that the decision in FCI, Danbury suggests that a proposal permitting employees to be present when their personal property is searched is in all instances a "procedure which does not interfere with management's ability to protect its personnel and property," it will no longer be followed. 29 FLRA at 1015. Rather, in determining whether such notice is procedural, we will take into account any special circumstances that are revealed to us in the record concerning the relationship between notifying employees of searches and an agency's ability to achieve its legitimate internal security objectives.
We note that where such an issue exists, the burden is on the parties to create a record upon which the Authority can make a negotiability determination. For example, EPA I, 35 FLRA 706, 711-12 (1990); National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982) (NFFE v. FLRA), aff'g National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). A party failing to meet this burden acts at its peril. For example, National Association of Government Employees, Local R1-134 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 589, 596 (1990).
The nature of this provision and the thrust of the Union's statements concerning the intent of the provision suggest that it is intended as an arrangement for employees who are adversely affected by the exercise of management's right to determine internal security practices. However, the record does not permit a determination of whether this provision constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG) (the Authority set forth the analytical framework that it would rely on to determine whether proposals constitute appropriate arrangements negotiable under section 7106(b)(3) of the Statute). As previously noted, the parties bear the burden of creating a record on which we can make a negotiability determination. For example, EPA I; NFFE v. FLRA.
Based on the record in this case, we conclude that the disputed portion of Provision 1 is nonnegotiable because it directly interferes with management's right to determine its internal security practices under section 7106(a)(1).(2) In view of this conclusion we do not address the Agency's additional arguments. We note, however, that management's right to determine its internal security practices encompasses investigations conducted by the Agency's Inspector General. See GSA, 18 FLRA 789, 795-99 (1985). Thus, our conclusions with respect to the applicability of that management right to this provision are equally relevant to those searches that are conducted under the auspices of the Agency's Inspector General. Compare Department of Defense, Defense Criminal Investigative Service; Defense Logistics Agency and Defense Contract Administration Services Region, New York, 28 FLRA 1145 (1987), aff'd sub nom. Defense Criminal Investigative Service v. FLRA, 855 F.2d 93 (3rd Cir. 1988) (investigations conducted by an inspector general are subject to the requirements of section 7114(a)(2)(B) of the Statute, which governs employees' rights to representation at examinations conducted in connection with an investigation).
III. Provision 2
Article 27, Section E. The Employer agrees that if they become aware of a serious physical threat on a staff member and/or their family, the staff member will be notified immediately, and necessary precautions will be taken to avoid any physical harm toward that staff member or their family. [Only the underlined portion is in dispute.]
A. Positions of the Parties
The Agency argues that this provision is nonnegotiable because it would allow arbitrators to substitute their judgment for that of management in determining its internal security practices. The Agency argues that the provision is not negotiable for the additional reason that it would require the Agency to expend funds in providing protection to employees and their families that are not authorized by law.
In its petition, the Union states that threats of death and other physical harm against employees are not uncommon and that there have been actual attempts against employees' lives. The Union states that there has been a past practice of informing employees of such threats and that it wishes to continue that practice.
B. Analysis and Conclusions
As discussed in conjunction with Provision 1, an agency's right to determine its internal security practices includes the right to determine the policies and take appropriate actions to secure or safeguard its personnel, property, and operations. See, for example, EPA I. Proposals that establish substantive criteria governing the exercise of a management right directly interfere with that right. See, for example, National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 625-26 (1990) (EPA II). It is not necessary that a proposal dictate the specific action that an agency must take in order for that proposal to constitute a substantive limitation on the exercise of a management right. A general criterion that would restrict the range of an agency's discretion pursuant to a management right would similarly constitute a substantive limitation on that right. See, for example, id. at 626-27.
The disputed portion of Provision 2 establishes a substantive criterion that governs the actions that the Agency is to take in safeguarding its personnel. That is, the provisions require that the Agency must take "necessary precautions" to avoid any physical harm to employees who are the subject of a physical threat. Consequently, we conclude that the disputed portion of Provision 2 directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
This provision is clearly intended to prevent anticipated adverse effects on employees of the exercise of management's right to determine its internal security practices by prescribing a criterion to ensure the protection of Agency personnel. Consequently, we conclude that it constitutes an arrangement within the meaning of section 7106(b)(3) of the Statute. See, for example, National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657 (1991) (Provision 8, which sought to ameliorate the adverse effects of the exercise of a management right by inhibiting the exercise of that right, constituted an arrangement).
However, as is the case with Provision 1, the record that has been established in conjunction with this provision does not contain sufficient information to allow a determination as to whether this arrangement is appropriate. For example, the record provides no explanation as to what is contemplated by the term "necessary precautions." Thus, the record does not enable us to make a judgment concerning the burdens that would be imposed on the Agency in meeting the requirement that it take "necessary precautions," and we are not able to do so independently. Compare EPA II (in finding that Proposal 1, which required the agency to provide the same level of security to employees in two building as that which existed in a third building, was an appropriate arrangement, the Authority had available in the record a description of the level of the security measures that existed in the third building).
In the absence of a record on which to base a conclusion that the disputed portion of Provision 2 constitutes an appropriate arrangement that is negotiable under section 7106(b)(3) of the Statute, we conclude that that portion of the provision is nonnegotiable because it directly interferes with management's right to determine its internal security practices. In view of this conclusion, we do not address the Agency's contention that the disputed portion of the provision is nonnegotiable for the additional reason that it would require expenditures of unauthorized appropriated funds.
The Union's petition for review is dismissed.
(If blank, the decision does not have footnotes.)
1. 5 U.S.C. Appendix 3 is the codification of the Inspector General Act of 1978.
2. In its statement of position, the Agency cites a number of court decisions that relate to the constitutionality of searches of employees and property in general and specifically in the context of correctional institutions. The Union has made no claims as to the constitutionality of the searches that are the subject of this provision. In this decision, we do not address the issue of the constitutionality of the searches. Rather, for purposes of ruling on the negotiability of this provision, we will assume that the Agency's actions are lawful.