[ v61 p52 ]
Dissenting Opinion of Member Armendariz:
I would find that the proposal excessively interferes with the Agency's right to determine its internal security practices. On this basis, I would find that the proposal is outside the duty to bargain.
The standard for assessing an agency's right to determine its internal security practices under § 7106(a)(1) of the Statute is well established. That right includes the authority to determine the policies and practices that are part of an agency's plan to secure or safeguard its personnel, physical property, or operations against internal or external risks. See, e.g., NTEU, 53 FLRA 539, 581 (1997). Where the agency shows a link, or reasonable connection, between its objective of securing or safeguarding its personnel, property, or operations and the policy or practice designed to implement that objective, a proposal that "conflicts with" the policy or practice affects management's right to determine its internal security practices. NTEU, 55 FLRA 1174, 1186 (1999) (Member Wasserman dissenting). "Once [such] a link has been established, the Authority will not review the merits of the agency's plan in the course of resolving a negotiability dispute." Fraternal Order of Police, Lodge 1-F, 51 FLRA 143, 144-45 (1995) (citing AFGE, Local 2143, 48 FLRA 41, 44 (1993)). That is, the Authority "will not examine the extent to which the practices adopted by management to achieve its security objectives actually facilitate the accomplishment of those objectives." AFSCME, Locals 2910 & 2477, 49 FLRA 834, 839 (1994) (citing AFGE, Local 1920, 47 FLRA 340, 349 (1993) (Local 1920). [ v61 p53 ]
In this case, the Agency has met the standard set forth above because the Agency has shown a reasonable connection between its goal of safeguarding its employees and its policy of limiting the wearing of cargo shorts to certain confined cargo environments. Among other things, the Agency explains that employees perform duties that expose them to physical hazards, such as exposure to known and unknown hazardous substances and direct sunlight. The Agency also states that employees perform duties that require them to perform physically strenuous activities, such as crawling and kneeling for prolonged periods of time in outdoor environments. The Agency has determined that to safeguard its personnel in such situations, long trousers, rather than shorts, provide greater protection from injury and illness. In addition, the Agency states that requiring all its officers, not just those who are represented by other labor organizations and who are not permitted to wear cargo shorts, to be easily identifiable by common clothing enhances safety. In my view, the Agency has established a link between its policy of requiring that long trousers be worn, except in limited instances, and its goal of protecting its personnel.
Although the Union disputes the Agency's safety claims, asserting that the Agency failed to provide information to substantiate those claims, as stated above, the Authority does not review an agency's determination as to how the agency may best achieve its security objectives. See Local 1920, 47 FLRA at 349. Having found that the Agency established the requisite link, as set forth above, it is irrelevant whether the Agency provided proof of any on-the-job injuries.
The fact that the Agency permits employees in certain confined cargo environments in South Florida, Puerto Rico and the Southwest border locations to wear cargo shorts, see Statement of Position, Attachment 2 at 29, does not warrant a different result. An agency's decision as to which locations require particular safety measures is clearly an exercise of the right to determine internal security practices. See NTEU, 59 FLRA 749, 753-54 (2004) (Member Pope dissenting), remanded as to other matters, 404 F.3d 454 (D.C. Cir. 2005).
I would also reject the Union's claim that the proposal is negotiable as an appropriate arrangement under the standard set forth in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). Under this standard, the Authority first determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. Id. at 31; see also United States Dep't of the Treasury, Office of the Chief Counsel, Internal Revenue Serv. v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). To establish that a proposal is an arrangement, a union must identify the effects or reasonably foreseeable effects on employees that flow from the exercise of management's rights and how those effects are adverse. See KANG, 21 FLRA at 31. The claimed arrangement must also be sufficiently "tailored" to compensate those employees suffering adverse effects attributable to the exercise of management's rights. See AFGE, Local 1687, 52 FLRA 521, 523 (1996).
In this case, the Union has not demonstrated what adverse effects flowing from the exercise of a management right the proposal is designed to ameliorate. In this regard, the ability of employees to wear shorts in a hot and humid environment, which constitutes the basis of the Union's argument, seems to me to be a matter of personal convenience to the employees and would not satisfy the required showing under KANG. However, even if the proposal here constituted an arrangement, I would find that the proposal excessively interferes with the Agency's right to determine its internal security practices. Although employees' personal comfort is an obvious benefit, the proposal would completely bar the Agency from requiring employees to wear long trousers in all but a few confined environments. As such, the proposal would negate the safety concerns for which the protective measure was designed and, on balance, constitutes an excessive infringement on the exercise of a management right.
In sum, I would find that the proposal is outside the duty to bargain and I would dismiss the petition for review. [n1]
Footnote # 1 for 61 FLRA No. 7 - Opinion of Member Armendariz