42:1327(91)NG - - AFGE, National VA Council and VA, Washington, DC - - 1991 FLRAdec NG - - v42 p1327
[ v42 p1327 ]
The decision of the Authority follows:
42 FLRA No. 91
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) and concerns the negotiability of one proposal. The proposal seeks to preserve the "status quo" by allowing employees access to the electronic mail system to receive a reasonable number of personal messages.
We conclude that the proposal is not sufficiently specific and delimited for us to make a determination with regard to its negotiability. Accordingly, we will dismiss the petition for review.
The Union submitted the proposal in this case in response to the Agency's notification to the Union of its intent to distribute to employees in the office of the General Counsel a policy statement regarding the use by employees of the Federal computer system, including the electronic mail system. After the Union filed a petition for review of the Agency's allegation of nonnegotiability, the Agency distributed to employees its policy statement (Agency Attachment E-4 to Statement of Position) and an accompanying statement entitled Notice to Employees With Computer Access, for employees to read and sign indicating that they understood the Agency's policy (Agency Attachments E-5 and E-6 to Statement of Position).
The Agency policy statement and accompanying statement stated, as relevant here, that: (1) employees are not "authorized to use the electronic mail feature either for personal messages not related to the performance of [their] official duties or in lieu of personal telephone calls[,]" (2) The Agency "will monitor the amount, types and contents of messages sent by individuals on electronic mail," and (3) employees may be subject to disciplinary action or prosecuted if they use "the electronic mail feature" for any purposes other than performance of their "official duties." Agency Attachments E-5 and E-6 to Statement of Position. In addition, the notice informs employees that they may not disclose or share security codes for any reason and that "improper access to, or unauthorized modification or disclosure of data" could subject them to criminal penalties or disciplinary or adverse actions. Agency Attachment E-6 to Statement of Position.
III. Preliminary Matter
The Agency moves to strike the Union's reply brief on the grounds that the Union failed to serve a copy of its reply brief on the Agency's representative of record in accordance with section 2424.7(c) of the Authority's Rules and Regulations.
The Certificate of Service attached to the Union's reply brief reveals that the reply brief was served on two officials of the Agency, the Agency's Administrator and the Director, Labor-Management Relations Service. Under section 2424.7(c) of the Authority's Rules and Regulations, a copy of the Union's reply brief must be served on the agency head and on the agency's representative of record in the proceeding. The record does not establish that the Agency had named a particular official of the Agency as representative of record for service of documents relating to the Union's appeal. In the absence of an explicit restriction as to which Agency representative could be served with the Union's reply brief, we conclude that service of the Union's reply brief on the Director, Labor-Management Relations Service constituted service on the Agency's representative of record. Compare, for example, American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 148 and Department of Justice, U.S. Bureau of Prisons, Allenwood Federal Prison Camp, 31 FLRA 12 (1988) (in the absence of an explicit restriction on the union official who could be served with an allegation of nonnegotiability, service on the chief steward constituted service on the exclusive representative). Accordingly, we deny the Agency's motion to strike the Union's reply brief.
The National VA Council proposes a "Status Quo" concerning the Office Policy in the Office of General Counsel.
A. Positions of the Parties
The Agency disputes the Union's claim that the Agency's policy concerning the electronic mail system has been to allow employees to receive a reasonable number of calls at work. Rather, the Agency asserts that its policy has been to authorize employee access to the electronic mail system for official Government business purposes only and not for personal purposes and that such policy reflects the status quo.
The Agency contends that the proposal is nonnegotiable because it would allow employees to have unlimited access to the electronic mail system for personal purposes and, therefore, interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. In support, the Agency relies on, among other cases, American Federation of Government Employees, AFL-CIO, National Archives and Record Administration Council of AFGE Locals (Council 1260) and National Archives and Record Administration, 31 FLRA 878 (1988) (National Archives and Record Administration) and National Federation of Federal Employees, Local 1827 and Defense Mapping Agency, Aerospace Center, St. Louis Air Force Station, Missouri, 16 FLRA 791 (1984) (Defense Mapping Agency, Aerospace Center). Specifically, the Agency contends that in Defense Mapping Agency, Aerospace Center the Authority upheld an agency's right to determine its internal security practices by requiring employees to sign an agreement establishing security measures.
The Agency states that it has chosen as a security measure to limit employee access to its electronic mail system for official purposes because it is "an effective impediment against tampering with or obtaining unauth