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60 FLRA No. 29
OF STATE, COUNTY
AND MUNICIPAL EMPLOYEES
DEPARTMENT OF JUSTICE
OFFICE OF JUSTICE PROGRAMS
DECISION AND ORDER
ON A NEGOTIABILITY ISSUE
August 10, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal. The Agency filed a statement of position and the Union filed a response to the Agency's statement. For the reasons which follow, we find that the proposal is outside the duty to bargain.
II. The Proposal
The Employer's practice is not to monitor personal telephone calls of employees or an employee's private computer system use except when there is reasonable cause to believe that the telephone or the computer system is being used contrary to law, rule, or regulation, or that illegal activity is being conducted or discussed over the phone or the computer system. Any such monitoring by the Employer must be authorized by the Assistant Attorney General for OJP, or his or her designee.
Petition at ¶ 9.
III. Meaning of the Proposal
During the post-petition conference, the Union explained the intended meaning of several terms used within the proposal. "OJP" means Office of Justice Programs. According to the Union, to "monitor" means both to record the duration of the call or computer usage and to eavesdrop or examine the content of the message or usage. According to the Union, "personal calls" would encompass those made using Agency telephone equipment as well as privately-owned cell phones. The Union also clarified that "computer system" originally meant the Agency-owned computer but that the proposal would also pertain to privately-owned computer equipment such as laptops, palm pilots, etc. Both parties indicated that there had been no meeting of the minds on the precise meaning of "reasonable cause." The Union stated that the language of the proposal meant that reasonable cause "is an apparent state of facts found to exist upon reasonable inquiry that would induce a reasonably intelligent and prudent person to believe that a crime or cause of action had been committed." Response at 7.
During the post-petition conference, the Union acknowledged that the proposal would not apply to telephone conversations overheard by someone nearby, and for which authorization to gather information had not been pre-approved.
Also during the post-petition conference, the Union explained that a similar provision had been negotiated in 1984 in a previous agreement, but that provision only addressed telephone usage. Because computer usage is now wide-spread, the proposal was amended to include computer usage as well as telephone usage. The Union also indicated that the prior provision had indicated that authority to monitor calls was vested with the General Counsel. The Union stated that this proposal uses the Assistant Attorney General, OJP, to reflect current delegations of authority.
The Authority has previously held that where, as here, a proposal is silent with respect to a particular matter, a union's statement clarifying the matter will be adopted if it is otherwise consistent with the wording of the proposal. See, e.g., Nat'l Educ. Assoc., Overseas Educ. Assoc., Laurel Bay Teachers Assoc., 51 FLRA 733, 737 (1996). In this case, the proposal does not specify whether it pertains to Agency-owned telephone and computer equipment only, or whether it also pertains to privately-owned computer and communication equipment. The Union specified that the proposal pertains to both Agency and privately-owned equipment. We will adopt the Union's explanation of the proposal [ v60 p125 ] set forth above as it is consistent with its plain wording. For the same reason, we also will use the definition of "reasonable cause" as set out in the Union's Response at 7.
IV. Positions of the Parties
A. Union's Position
1. Employee Privacy Rights
The Union states that for many years, the Agency has permitted employees dual use of its computer systems--that is both for Agency business and for private use. Therefore, consistent with O'Connor v. Ortega, 480 U.S. 709 (1987) (O'Connor), the Union believes that there are privacy rights in an employee's personal use of his or her office computer that the proposal attempts to address. The Union also emphasizes that employees may use their government telephones for occasional personal calls, which is permitted by Agency policy, and that employees should not lose their Fourth Amendment rights simply because they work for the government. The Union asserts that monitoring of private conversations over business or government telephones is forbidden by federal telecommunications law. The Union relies on Watkins v. L.M. Berry & Co., 704 F.2d 577 (11th Cir. 1983).
The Union states that no similar law applies to computer usage, but does point to the United States Department of Justice Criminal Division's Computer Crimes and Intellectual Property Section's July 2002 Guidelines "Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations." In that document, the Union states that the Agency held that employees "also generally retain a reasonable expectation of privacy in data held within electronic storage devices." Response at 4.
The Union also relies on the Supreme Court's decision in O'Connor, in which the Union states the Court held that public employers are not required to obtain a warrant before searching the offices of their employees for evidence of workplace rule violations. However, according to the Union, the Court ruled that management must have a reasonable suspicion of misconduct. The Union contends that the Court stated that a search is justified when management has reasonable grounds for suspecting that a search will turn up evidence that the employee is guilty of work-related misconduct. The Union further contends that the Court held that the "inception and scope of the search must be reasonable." Id. (emphasis omitted).
2. Right to Assign Work and Direct Employees
The Union maintains that, contrary to the Agency's position, there is nothing in the proposal that would interfere with the Agency's right to assign work and direct employees. The Union asserts that the proposal merely states that it is the Agency's policy not to monitor. The Union distinguishes this proposal from other proposals that have prohibited monitoring, and that the Authority has found to be nonnegotiable. Under the proposal, the Union argues that the Agency could begin monitoring following negotiations. To the extent that some interference with this right is found, the Union contends that the proposal constitutes a negotiable procedure and an appropriate arrangement.
3. Right to Discipline
In response to the Agency's contention regarding the right to discipline, the Union claims that, provided the Agency has "reasonable cause to believe something is amiss," there is nothing in the proposal prohibiting the Agency from investigating employees' private computer activity and imposing Agency sanctions for any misuse. See Response at 7.
4. Right to Determine Internal Security Practices
The Union also states that although an agency may not be required to negotiate its internal security practices, it can be required to negotiate proposals that are consistent with those security objectives. The Union relies on AFGE, AFL-CIO, Local 1759, 29 FLRA 261, 264-65 (1987) in which the Authority found negotiable proposals that incorporated the reasonableness standard established by the Supreme Court in O'Connor for searches of areas provided to government employees for their exclusive use. The Union contends that the proposal constitutes a negotiable procedure and an appropriate arrangement.
B. Agency's Position
1. Employee Privacy Rights
The Agency contends that employees have no expectation of privacy when using their government computer equipment. The Agency asserts that when employees access the computer system, a banner, which contains a statement that employees must acknowledge and agree to as a condition of using the computer system, informs them that users should have no expectation of privacy when using the system and that by using the computer they are consenting to monitoring by the Agency for legitimate government purposes. [ v60 p126 ]
2. Right to Assign Work and Direct Employees
The Agency contends that the proposal is contrary to management's rights under § 7106(a)(2)(A) and (B) to assign work and direct employees. In this regard, the Agency asserts that the Authority has previously stated that proposals which preclude management from using a particular method of monitoring employees' work performance directly interfere with management's rights to direct employees and assign work. The Agency relies on NFFE, Local 1482, 44 FLRA 637, 668 (1992) (Proposal 4). The Agency also maintains that proposals that prohibit management from using information derived from its computer system to monitor employee production have been held to directly interfere with these rights. NAGE, Local R1-203, 55 FLRA 1081, 1085 (1999). The Agency argues that it is impossible for the Agency to know when an employee is performing work or when the employee is using the computer or telephone for private purposes. The Agency claims that by monitoring an employee's use of the telephone and computer system, it may determine if the employee's private use of the computer system is affecting performance and overall work output. The Agency concludes that because the proposal would prevent routine monitoring of computer and telephone usage, it prevents the Agency from using this technique to monitor an employee's work performance and therefore is nonnegotiable.
3. Right to Discipline
The Agency contends that the proposal impermissibly affects management's right to discipline under § 7106(a)(2)(A) of the Statute. The Agency asserts that the Authority has held that management's right to discipline employees under § 7106(a)(2)(A) includes the right to investigate to determine whether discipline is justified. The Agency asserts that proposals that limit an agency's use of an appropriate investigative technique to uncover conduct subject to disciplinary action directly interfere with management's right to discipline. The Agency relies on NAGE, Local R5-82, 43 FLRA 25, 30-31 (1991).
4. Right to Determine Internal Security Practices
The Agency argues that the proposal impermissibly affects management's right under § 7106(a)(1) of the Statute to determine its internal security practices because it precludes management's right to make internal security determinations. The Agency maintains that the Authority has held that the right to determine internal security practices includes the authority to determine the policies and practices that are part of the agency's plan to secure or safeguard its personnel, property or operations against internal and external risks. The Agency asserts that where management shows a link between its objective of safeguarding its personnel, property or operations and the investigative technique designed to implement that objective, a proposal that conflicts with the technique affects management's right under § 7106(a)(1) of the Statute.
The Agency also asserts that it needs to monitor computer usage to guard against misuse and abuse of the internet, penetration by computer viruses and hackers, network slowdowns, and other problems that affect the productivity of all employees. The Agency also states that employees using the Agency's computer system are put on notice by a banner each time they log on that using the systems constitutes consent to monitoring. As such, the Agency argues that this case is distinguishable from O'Connor, because the employees here do not have an expectation of privacy when using Agency equipment.
The Agency argues that the requirement that it have reasonable cause before monitoring an employee's computer usage precludes the Agency from using this technique of monitoring to help promote internal security of the Agency. The Agency maintains that it is through monitoring that the Agency may develop the evidence needed to determine whether an employee is using the computer system for illegal purposes or in a way that is contrary to law, rule or regulation. For these reasons, the Agency contends that the proposal is nonnegotiable.
V. Analysis and Conclusions
Although we have adopted the Union's interpretation of the proposal as pertaining to both government-owned and privately-owned equipment, the parties discuss the proposal only in the context of government-owned computer and telephone equipment. Therefore, our analysis is limited accordingly.
A. Employee Privacy Rights
We construe the Union's privacy arguments as a claim that the proposal is negotiable because it is consistent with the Supreme Court's decision in O'Connor. [*] For the following reasons, we reject the claim.
The courts address employees' expectations of privacy in the workplace on a case-by-case basis. O'Connor, 480 U.S. at 718. Within the workplace context, the Supreme Court has recognized that employees may have a reasonable expectation of privacy against intrusion [ v60 p127 ] by police. Id. at 716. However, public employees' expectations of privacy may be reduced by virtue of actual office practices and procedures, or by legitimate regulation. Id. at 717. See United States of America v. Angevine, 281 F.3d 1130, 1134-35 (10th Cir. 2002) (professor at state university did not have a reasonable expectation of privacy in relation to university computer he used in his work because a banner, reminding user of university right to inspect, appeared on screen which user had to acknowledge before using system and because it was a shared computer system owned by the university).
We find the Union's reliance on privacy-related rights and precedent unpersuasive because, as discussed below, the employees have no reasonable expectation of privacy when using the Agency computer system. As noted in the discussion of the Agency's arguments regarding employee privacy and not disputed by the Union, the Agency's computer system sets forth a banner, as each person starts to log onto the computer system, which informs users that there is no expectation of privacy when using the Agency's computer system. And, an employee who chooses to use the Agency's computer system must acknowledge and agree to this warning as a precondition to logging onto the system and thus has no expectation of privacy when using the system.
Accordingly, the Union's reliance on O'Connor is misplaced.
B. Right to Assign Work and Direct Employees
Proposals that preclude management from using a particular method of monitoring employees' work performance affect management's right to direct employees and assign work under § 7106(a)(2)(A) and (B) of the Statute. See, e.g., AFGE, Local 2879, 38 FLRA 244, 247-48 (1990). In particular, proposals that prohibit management from using information derived from its computer system to monitor employee production have been held to directly interfere with these rights. See, e.g., NFFE, Local 1482, 44 FLRA at 665-70. The proposal prohibits the Agency, unless reasonable cause exists to believe the computer is being used contrary to law, rule or regulation, from monitoring the amount of time employees use their computers and using that information for the purpose of evaluating their productivity. The proposal also prohibits the Agency from monitoring the content of employees' computer usage. Consistent with NFFE, Local 1482, therefore, the proposal affects management's rights to direct employees and assign work under § 7106(a)(2)(A) and (B) of the Statute. See NAGE, Local R1-203, 55 FLRA at 1085.
The Union asserts that the proposal constitutes a procedure and an appropriate arrangement as to the exercise of these rights. However, the Union provides no argument or authority to support its bare assertion that this proposal constitutes a procedure and an appropriate arrangement under § 7106(b)(2) and (3) of the Statute. When a union fails to support such an assertion, the Authority declines to address it. See NAGE, Local R1-109, 53 FLRA 403, 411 (1997). Accordingly, the Union's assertion provides no basis for concluding that the proposal is within the duty to bargain under § 7106(b)(2) or (3). Therefore, we find that the proposal conflicts with § 7106(a) of the Statute and is outside the duty to bargain.
C. Right to Discipline
Management's right to discipline employees under § 7106(a)(2)(A) of the Statute includes the right to investigate to determine whether discipline is justified. See NAGE, Local R1-203, 55 FLRA at 1085; NFFE v. FLRA, 801 F.2d 477, 480 (D.C. Cir. 1986). Proposals that limit an agency's use of an appropriate investigative technique to uncover conduct subject to disciplinary actions directly interfere with management's right to discipline. See, e.g., NAGE, Local R1-203, 55 FLRA at 1085; NAGE, Local R5-82, 43 FLRA at 30-31. NAGE, Local R1-203 involved recording telephone calls and NAGE, Local R5-82 dealt with making telephone calls as ways of gathering information. The proposal in this case also involves telephone use as well as computer use, but the difference between monitoring telephones and monitoring telephones and computers is not significant because both situations attempt to limit the monitoring of employee conduct. Because the proposal would preclude the Agency from monitoring telephone and computer usage as a means of investigating employee conduct, the proposal affects management's [ v60 p128 ] right to discipline. See NAGE, Local R1-203, 55 FLRA at 1086; NAGE, Local R5-82, 43 FLRA at 31.
The Union also asserts that the proposal constitutes a procedure and/or an appropriate arrangement regarding the exercise of this right. However, as the Union provides no argument or authority to support its assertion that this proposal constitutes a procedure or an appropriate arrangement under § 7106(b)(2) and (3) of the Statute, the Union's assertion provides no basis for concluding that the proposal is within the duty to bargain under § 7106(b)(2) or (3). See NAGE, Local R1-109, 53 FLRA at 411. Accordingly, the Union provides no basis for concluding that the proposal is within the duty to bargain under § 7106(b)(2) or (3). Accordingly, the proposal affects management's right to discipline under § 7106(a)(2)(A) of the Statute and is not negotiable.
D. Right to Determine Internal Security Practices
Because we have found that the proposal conflicts with management's rights to assign work and direct employees and to discipline employees, we need not address whether the proposal also conflicts with management's right to determine internal security practices.
The petition for review is dismissed.
Footnote * for 60 FLRA No. 29 - Authority's Decision
The Union makes no claim that the proposal enforces an applicable law under § 7106(a)(2); even if it did, that analysis would apply only in resolving arguments about rights under that subsection, not the Agency's arguments regarding rights under § 7106(a)(1). Moreover, to the extent that the Union's argument could be construed as a challenge to the Agency's policy and regulations regarding computer usage, negotiability proceedings under § 7117 of the Statute are not the appropriate vehicle to do so. Any challenge to such an Agency policy should be done in an appropriate forum. Section 7105 of the Statute enumerates the powers and duties of the Authority, none of which relate to passing judgment on rules or regulations that any other Federal agency has enacted. See United States Dep't of Def., Educ. Activity, Arlington, Va., 56 FLRA 762, 765 (2000), citing AFGE, AFL-CIO, Nat'l Council of Grain Inspection Locals v. FLRA, 794 F.2d 1013, 1015 (5th Cir. 1986) (Congress did not intend for the Authority to sit in review of other agencies' regulations).