46:0333(29)NG - - Int. Brotherhood of Police Officers and Army, Watervliet Arsenal, Watervliet, NY - - 1992 FLRAdec NG - - v46 p333
[ v46 p333 ]
The decision of the Authority follows:
46 FLRA No. 29
FEDERAL LABOR RELATIONS AUTHORITY
INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS
U.S. DEPARTMENT OF THE ARMY
WATERVLIET, NEW YORK
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
October 28, 1992
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). The Agency decided to prohibit the use of a personal television at the guard desk area on the basis that it posed a risk to internal security. The Union essentially proposed that the Agency continue the practice of allowing the guard desk officer to watch television while on duty. For the reasons that follow, we conclude that the proposal is nonnegotiable because it directly interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.
II. Background and Proposal
The Agency is the only facility in the continental United States that is engaged in the development and manufacture of certain types of artillery. One of the Agency's tenants, a research and development firm, and the Agency's Directorate of Law Enforcement and Security are located in the same building. Access to this building is monitored by a guard desk officer with the aid of closed circuit surveillance cameras. There are two closed circuit screens on a console that the guard must observe. In the past, the guard desk officer had use of a personal television while on duty. On March 17, 1992, the Agency determined that the use of a personal television at the guard desk area was a threat to its internal security and prohibited its further use.(*/) On March 31, 1992, the Union requested an allegation of nonnegotiability as to why the continued use of a personal television set was nonnegotiable.
There is nothing in the record before the Authority that indicates that a specific proposal was submitted by the Union. However, in its statement of position, the Agency provided the following language of what it presumed was the Union's proposal:
The practice of allowing the guard desk officer to watch a personal television during working hours will continue.
Statement of Position at 2. The Union did not file a response to the Agency's statement of position, nor did it object to the language formulated by the Agency. In our view, the Union is seeking to retain the practice of permitting the use of a personal television at the guard desk area. Thus, for the purpose of our decision, we will accept the above formulation of the proposal. See generally, National Federation of Federal Employees, Local 738 and U.S. Department of the Army, Army Engineer Center and Fort Leonard Wood, Fort Leonard Wood, Missouri, 37 FLRA 131, 134 (1990).
III. Positions of the Parties
A. The Agency
The Agency contends that the proposal interferes with the right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency claims that the exercise of that right includes the right to determine what is necessary to safeguard its physical property against internal or external risks, to prevent improper or unauthorized disclosure of information, or to prevent the disruption of its activities or operations. The Agency explains that because it is the only installation in the continental United States engaged in the development and manufacture of certain types of artillery, among other things, the unauthorized disclosure of this type of technology and production would have serious consequences on the security of the United States. In addition, the Agency claims that since the establishment of the facility over 150 years ago, the surrounding area has changed from an agrarian community to a large metropolitan city. In recognition of these concerns, the Agency states that it has developed security measures to identify actual and potential intrusions and protect against unauthorized disclosure of sensitive information.
The Agency contends that it installed closed circuit surveillance cameras in order to prevent unauthorized access to the building. The Agency claims that the proposal would allow the guard desk officer to watch television during the time that he or she should be observing the closed circuit monitors. The Agency argues that the use of a television distracts the guard and could result in a serious breach of security. Consequently, the Agency claims that prohibiting the use of a personal television at the guard desk during working hours is integrally related to an internal security practice and that the proposal would negate the effectiveness of that practice.
The Agency further contends that the fact that it allowed the use of a television during the Persian Gulf War is irrelevant to the negotiability of the proposal. In this regard, the Agency claims that where an agency has established the requisite connection between safeguarding its personnel and property and a practice that is designed to implement that goal, "'the Authority will not review the merits of the agency's plan in the course of resolving a negotiability dispute.'" Statement of Position at 4, quoting National Federation of Federal Employees, Local 2058 and U.S. Department of the Army, Aberdeen Proving Ground Support Activity, Aberdeen Proving Ground, Maryland, 38 FLRA 1389, 1403-04 (1991) (Member Talkin concurring) (Aberdeen Proving Ground). Similarly, the Agency asserts that the existence of a past practice of allowing the use of a personal television by the guard is not sufficient to establish that the proposal is negotiable.
The Agency also contends that the proposal interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency claims that