49:0725(69)NG - - NFFE, Local 1214 and HQ, Army Training Center and Fort Jackson, Fort Jackson, SC - - 1994 FLRAdec NG - - v49 p725
[ v49 p725 ]
The decision of the Authority follows:
49 FLRA No. 69
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. DEPARTMENT OF THE ARMY
HEADQUARTERS, U.S. ARMY TRAINING CENTER AND FORT JACKSON
FORT JACKSON, SOUTH CAROLINA
DECISION AND ORDER ON NEGOTIABILITY ISSUES
April 15, 1994
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 three proposals relating to the Agency's proposed program to conduct random inspections of employees and their vehicles. The Union did not file a reply brief. For the reasons which follow, we find that the proposals are nonnegotiable.
Fort Jackson is a basic training center for the Department of the Army. It is an open post, encompassing 52,300 acres of land, and is part of the city of Columbia, South Carolina. Individuals who are not Agency personnel travel through the post to reach sites in Columbia. Several concentrations of valuable and sensitive items, such as a weapons warehouse, an ammunition supply point, and a transportation motor pool, are located on the installation. In addition, certain offices on the installation contain valuable equipment.
The population of Fort Jackson currently consists of 12,000 trainees, 9,163 permanently assigned soldiers, 1,718 employees, military family members, private sector employees, and contract personnel. Retired military personnel also visit the post for medical care and to use the commissary. In order to secure its property, prevent crime, and ensure that motorists are in compliance with state and Federal motor vehicular laws, the Agency proposed to implement a program of random inspections of personnel and vehicles at the gates of the installation. The Union submitted the disputed proposals to the Agency in response to the proposed program.
The [Agency] and the Union (the parties) agree that nonconsent searches of bargaining unit members and/or their privately owned vehicles (POVs) are appropriate when based upon probable cause that an offense has been committed or upon military necessity.
The parties agree that nonconsent searches of bargaining unit members and\or their POVs with a view to the discovery of contraband or illicit or stolen property, or some evidence of guilt to be used in the prosecution of a criminal action for some crime or offense is appropriate when based on upon [sic] probable cause.
The parties agree that a "search" to which the exclusionary rule may apply is one when there is a quest for, a looking for, or a seeking out of that which offends against the law by Fort Jackson law enforcement personnel or their agents when there is an absence of probable cause or military necessity.
IV. Positions of the Parties
According to the Agency, there has been an increase in individuals driving under the influence of alcohol (DUIs), stolen property, and unauthorized privately-owned weapons being brought onto the installation. The Agency asserts that its proposed random gate inspection program would reduce: (1) property thefts; (2) DUIs and the presence of illegal substances; (3) illegal contraband and unauthorized weapons; (4) stolen vehicles; (5) unauthorized dumping; (6) threats to the safety of individuals working, visiting, or residing at the installation; and (7) unauthorized and unlicensed poachers.
The Agency contends that the proposals in this case would permit it to conduct unannounced inspections of employees and their vehicles only on the basis of probable cause and, thus, would preclude it from conducting random inspections. Citing National Federation of Federal Employees, Local 28 and Defense Commissary Agency, 47 FLRA 873 (1993) (DCA), the Agency contends that proposals which preclude an agency from conducting unannounced random inspections absent probable cause directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
Additionally, the Agency asserts that Army Regulation (AR) 210-10, cited by the Union as the source of the probable cause standard referenced in the proposals, "became obsolete by virtue of [Rule 314,] Executive Order 12473, Manual for Courts-Martial, United States 1984."(1) Statement of Position at 4. The Agency contends that the right to conduct random gate inspections is included within the "penumbra" of the authority of military commanders to protect their installations and carry out their missions. Id.
The Agency also claims that Proposal 3 would interfere with management's right to discipline employees. The Agency contends that the proposal would prohibit management from disciplining an employee based on evidence obtained through a random search unless there was probable cause for the search. According to the Agency, because the proposal limits the evidence on which management could rely to support a disciplinary action, the proposal violates its right to discipline employees under section 7106(a)(2)(A) of the Statute.
According to the Union, management's right to determine its internal security practices must be consistent with law and regulation. More specifically, the Union asserts that the "standard of probable cause is well-established in constitutional law and is referenced in [AR 210-10,] as a prerequisite to effecting nonconsent searches." Petition at 1. The Union claims that AR 210-10 authorizes entry, exit, and personal searches when based on probable cause that an offense has been committed or military necessity.(2) The Union states that the proposals are not intended to preclude the Agency from conducting searches that are for just cause and are consistent with the Agency