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62 FLRA No. 6
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF THE ARMY
ALASKA CIVILIAN PERSONNEL
FORT RICHARDSON, ALASKA
DECISION AND ORDER
ON A NEGOTIABILITY ISSUE
February 6, 2007
Before the Authority: Dale Cabaniss, Chairman and
Wayne C. Beyer, Member
I. Statement of the Case
This negotiability case is before the Authority pursuant to § 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 (SOP). The Union did not file a response.
For the reasons that follow, we find that the proposal is outside the duty to bargain because it affects management's rights to direct employees and assign work pursuant to § 7106(a)(2)(A) and (B) of the Statute, and because it affects management's rights to determine the internal security practices of the Agency under § 7106(a)(1) of the Statute. We therefore dismiss the petition for review.
The Information Technology (IT) specialists are responsible for the Agency's computer operations, including IT program planning, monitoring, and coordination of the systems analysis functions; review of contractor proposals for modification and enhancements of software applications; help desk responsibilities for Agency staff; and until May 16, 2006, maintenance of the Agency's servers. SOP at 2. For four years IT specialists have worked in the IT office behind a closed door that automatically locks whenever it is closed. Id. at 2. Supervisors have key and code access to the IT office. Record of Post-Petition Conference (Record) at 2. Historically, the IT office has housed the Agency's computers servers, which were thought to be required to remain behind two locked doors at all times, thus requiring that the IT office door be closed and locked. Allegation of Non-negotiability at 3(b). Later it was learned that no such requirement regarding the servers existed, allowing for the IT door to be opened. Id. The Agency decided that the IT office door should be kept open during hours of operation, while the office was occupied, and the Union proposed that the door remain closed.
The proposal, as modified at the Post-Petition Conference provides as follows:
The door to the information technology office remain closed.
Record at 1.
IV. Meaning of the Proposal
By its terms, the proposal would permit the IT staff to maintain the status quo of working in the IT office behind a closed and locked door during business hours, rather than working in that office with the office door open, as the Agency proposes.
V. Positions of the Parties
The Agency argues that the Union's proposal allowing the IT specialists to work behind a closed and locked door affects management's chosen method of directing and assigning work to employees under § 7106(a)(2)(A) and (B). In support of its position, the Agency cites AFGE, Local 2879, 38 FLRA 244 (1990) (Local 2879), which the Agency asserts stands for the proposition that proposals precluding management from auditing employees' work by the use of unannounced visits directly affect management's rights to direct employees and assign work. The Agency maintains that the closed door prevents management from observing the performance of the IT staff, affecting its rights to assign work to employees and direct the manner in which the work is performed.
The Agency also contends that the Union's proposal to maintain a closed and locked door to the IT office affects its right under § 7106(a)(1) to determine internal security practices that are "necessary to safeguard its operations, personnel, and physical property against internal and external risks." SOP at 3 (citing [ v62 p16 ] AFGE, Local 1920, 47 FLRA 340, 348 (1993) (Local 1920)). The Agency argues that the Union's proposal inhibits its right to choose the method by which it will maintain the security of the workplace. The Agency maintains that an open door will allow management to visually scan the IT office for any unusual situations, provide for more frequent informal observance of the well-being of the employees and equipment, and allow management immediate access to the room when determining whether there are safety or security concerns. SOP at 4.
Lastly, the Agency contends that the Union's proposal affects management's right to discipline employees, because permitting the IT specialists to work behind a closed and locked door prevents supervisors from making unannounced visits for purposes of observing and/or investigating "employees [that may be] engaged in inappropriate behavior, non-work activities during duty time, etc." Id. at 7.
The Union attached the parties' collective bargaining agreement (Agreement), Article 7, Sections 1 and 2, to its petition for review (Petition) in an apparent attempt to argue that the Agreement requires bargaining on its proposal. [n1]
The Union claims that the IT specialists are currently working in a "hostile work environment" and, if the door to the IT office is opened, they will be subjected to "constant interruptions, snide remarks from other [agency] personnel [and] tattling to management about what is [or] is not being done[.]" Petition, ¶12.
The Union states that the proposal "does not preclude management from exercising `Management Rights'" [sic] but makes no assertion that the proposal constitutes a procedure or an appropriate arrangement under § 7106(b)(2) or (3) of the statute. Petition, ¶ 13.
VI. Analysis and Conclusion
As noted above, the Union did not file a response to the Agency's statement of position. Under the Authority's Regulations, a union "has the burden of raising and supporting arguments that the proposal . . . is within the duty to bargain[.]" 5 C.F.R. § 2424.32(a); see AFGE, Local 1858, 56 FLRA 1115, 1117 (2001) (Local 1858). Under § 2424.32(c)(2), a party's "[f]ailure to respond to an argument or assertion raised by the other party will, where appropriate, be deemed a concession to such argument or assertion." 5 C.F.R. § 2424.32(c)(2). Applying these regulatory provisions, we find that, by failing to respond to the Agency's statement of position, the Union conceded to the Agency's arguments that the proposal affects management's rights to direct and assign work to employees pursuant to § 7106(a)(2)(A) and (B) of the Statute, and to determine the internal security practices of the Agency pursuant to § 7106(a)(1) of the Statute.
This conclusion is consistent with Authority precedent. First, with regard to the Union's failure to respond to the Agency's statement of position, the Authority found in IFPTE, Local 96, 56 FLRA 1033 (2000) (IFPTE), that the Union's failure to respond to the Agency's statement of position resulted in a concession of its claims. Id. at 1034-35. In that case, as in this case, the union did not respond to the agency's statement of position and thus did not address the agency's argument that the union's proposal affected management's rights under § 7106(a). Id. at 1034. Additionally, as in this case, the union in IFPTE never asserted that the proposal fell within any of the listed exceptions to management's rights. Id. Consequently, under both the Authority's regulations and applicable precedent, the Union has failed to meet its burden of responding to the Agency's arguments, thus conceding that the proposal affects management's rights and is outside the duty to bargain. Id. at 1034; see also Local 1858, 56 FLRA at 1117 (record's silence as to union's position with respect to agency's claim, and Authority precedent supporting agency's claim, merited finding that union conceded that proposal affected a management right); NATCA, AFL-CIO, 61 FLRA 336, 339 (2005) (same); NTEU, 60 FLRA 219, 220, 222 (2004) (same).
Secondly, with regard to the Agency's right to direct and assign work to employees, the Authority decided in Patent Office Prof'l Ass'n, 41 FLRA 795, 834 (1991) (POPA), that the right to direct employees, within the meaning of § 7106(a)(2)(A), encompasses the right to "supervise and guide [employees] in the performance of their duties on the job." In this regard, the Authority has held that proposals precluding management [ v62 p17 ] from using a particular method of supervising employees' work performance affect management's right to direct employees and assign work. AFGE, Council 224, 60 FLRA 278, 279 (2004) (Chairman Cabaniss concurring on other grounds) (citing NAGE, Local R1-203, 55 FLRA 1081, 1085 (1999)). In particular, proposals that, in effect, preclude management from auditing employees' work by the use of unannounced visits and spot checking of employees' work directly affect management's rights to direct employees and assign work. AFGE, Local 2879, 38 FLRA 244 (1990); see also NFFE, Local 1263, 29 FLRA 61, 63-65 (1987); NFFE, Local 1454, 26 FLRA 848, 850-51 (1987).
Management has the right to determine the methods used to evaluate and supervise its employees, and its decision to afford managers uninhibited access to the IT office for purposes of assigning work and directing, monitoring and reviewing IT employees' performance constitutes an exercise of those rights. The Union's proposal would prevent unannounced visits, spot checking of employees' work and, for the most part, any supervisory oversight of the IT staff whatsoever. Thus, the proposal affects management's right to direct employees and assign work under § 7106(a)(2)(A) and (B) of the Statute and is outside the duty to bargain.
Thirdly, with regard to the Agency's right to determine the internal security practices of the Agency, it is well established that the right to determine internal security practices under § 7106(a)(1) of the Statute 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. 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 under § 7106(a)(1). NTEU, 55 FLRA 1174, 1186 (1999) (Member Wasserman dissenting in part). "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, 145 (1995) (citing AFGE, Local 2143, 48 FLRA 41, 44 (1993)). Thus, 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 Local 1920, 47 FLRA at 349).
Initially, the Agency has shown a reasonable connection between its security objective of safeguarding the well-being of the IT employees and equipment, and its policy intended to implement that security objective, namely keeping the door to the IT office open so as to allow quick, immediate visual and physical access to the IT office. See SOP at 4. Without this immediate visual and physical access, management is prevented from bringing improprieties, emergencies, safety or security concerns occurring within the IT office immediately to the attention of the supervisors. Id. Consequently, the Agency's decision to keep the door open constitutes an exercise of its right to determine its internal security policies and practices under § 7106(a)(1) of the Statute.
Further, the Authority has held that provisions dealing with locked doors in the workplace fall within management's right to determine its internal security practices. See POPA, 41 FLRA at 837-38. In POPA, the Authority decided that the union's proposal, which intended to maintain the practice whereby employees had locks on their office doors to which both the employee and management had keys, fell within the ambit of management's right to determine its internal security practices. Id. at 837. By proposing that the IT office door remain closed during business hours, the Union, in effect, is proposing that the IT employees work behind a locked door, which affects the Agency's ability to protect its personnel. Under POPA, issues pertaining to the implementation of particular measures used to protect Agency personnel were found to fall within the realm of management's rights. Thus, the Union's proposal affects management's right to determine its internal security practices.
Additionally, the Authority has long held that proposals prescribing the actions management will take to ensure the security of its computer system directly interfere with management's right to determine its internal security practices under the Statute. NFFE, Local 1482, 44 FLRA 637, 643-44 (1992); see also NTEU, Chapter 82, 45 FLRA 254, 260 (1992) (proposals that would have allowed employees to consume food and beverages in a computer room were non-negotiable, as excessively interfering with management's right to determine internal security practices, because Agency's rule prohibiting food and beverages in the computer room was designed to eliminate the potential vulnerability of the Agency's property).
Consistent with Authority precedent, since the Union's proposal to keep the IT office door closed interferes with management's visual and physical access to the IT office, which is the Agency's chosen method to ensure the internal security of the workplace, the proposal [ v62 p18 ] affects management's right to determine internal security practices under § 7106(a)(1) of the Statute. As noted above, the Union does not claim that the proposal constitutes a procedure under § 7106(b)(2) or an appropriate arrangement under § 7106(b)(3). Therefore, the proposal is outside the duty to bargain.
Given our conclusion that the proposal affects management's rights to direct employees and assign work under § 7106(a)(2)(A) and (B), and to determine internal security practices under § 7106(a)(1), we need not address the Agency's arguments that the proposal affects management's rights under the Statute to discipline employees.
The petition for review is dismissed.
Footnote # 1 for 62 FLRA No. 6 - Authority's Decision
Provision 7.1 of the Agreement provides that, subject to applicable laws, the parties will negotiate the "implementation of new or changes to existing personnel policies and working conditions which are within the discretion of Management." This provision applies to matters relating to "policy determination, not day-to-day operations; procedures which management officials will observe in exercising the `Management Rights'; and appropriate arrangements for employees adversely affected by the `Management Rights.'" Provision 7.2 of the Agreement states, in pertinent part, that agency negotiation with exclusive bargaining units will take place prior to the implementation of agency rules, regulations, policies or procedures.