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63 FLRA No. 70
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF THE AIR FORCE
LUKE AIR FORCE BASE, ARIZONA
DECISION AND ORDER
ON NEGOTIABILITY ISSUES
March 27, 2009
Before the Authority: Carol Waller Pope, Chairman and
Thomas M. Beck, Member
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). The appeal involves the negotiability of two proposals concerning privacy protection for bargaining unit employee Social Security numbers and dates of birth. The Agency filed a statement of position (SOP). The Union filed a response, to which the Agency filed no reply. For the reasons that follow, we find that the proposals are within the Agency's duty to bargain.
The Agency implemented a new requirement that bargaining unit employees register their vehicles for on-base parking. In conjunction with this change, the parties negotiated a Memorandum of Understanding (MOU). As relevant here, the MOU states:
1. Bargaining unit employee "Personal Information" as identified in the Privacy Act and the [Department of Defense] Privacy Program DoDD 5400.11 will be appropriately safe guarded.
2. Bargaining unit employees who do not wish to provide their [S]ocial [S]ecurity number and date of birth in order to register their vehicle and obtain vehicle decals will be required to provide their name, address, organization / section, supervisor's name, duty phone [number], and vehicle information.
Union's Response, MOU (Response), Attach. 2.
During negotiations for the MOU, the Union made two additional proposals related to the Social Security numbers and dates of birth of bargaining unit employees, over which the Agency refused to negotiate. Petition, Attach. 1. After receiving the Agency's written declaration of nonnegotiability regarding these two proposals, the Union filed the present petition for review.
With the exception of reasons required by law, bargaining unit employees will not be required to give their Social Security account numbers and birthdays to register their vehicles.
With the exception of reasons required by law, all bargaining unit employee Social Security account numbers and birthdays that are currently stored on the Security Forces Management Information Systems (SFMIS) and [Defense Enrollment Eligibility Reporting System (DEERS)] systems will be deleted.
Petition at 3, 5.
IV. Meaning of the Proposals
The parties agree that Proposal 1 would prohibit the Agency from requesting that employees provide their Social Security numbers or dates of birth to register for a parking decal, unless this information is required by law or government-wide regulation. Conference Report at 1. The Agency agrees that parking registrations could be processed with the alternate information listed in the MOU and that registration would not be denied if an employee's Social Security number and date of birth were not provided. Id. at 2.
The parties agree that Proposal 2 would require the Agency to remove certain personal information related to bargaining unit employees from two databases, except to the extent that it would be inconsistent with law or government-wide regulation. Id. Specifically, it would require that unit employee Social Security numbers and dates of birth be deleted from SFMIS, the Agency's security police computer system, and DEERS, [ v63 p175 ] a contractor database designed to maintain information about service member benefits and entitlements. Id., Petition at 5.
V. Positions of the Parties
The Agency contends that the proposals are not negotiable because they conflict with management's right to determine its internal security practices under § 7106(a)(1) of the Statute. According to the Agency, the proposals would interfere with the "collection of information, which the Agency has determined to be a part of their plan to secure and safeguard its personnel, physical property, and operations against internal and external risk." SOP at 2. The Agency argues that once it "shows a link or reasonable connection" between its internal security objective and its policy or practice, the merits or effectiveness of the plan are not subject to examination in a negotiability dispute. Id. at 1 (citing NTEU, 55 FLRA 1174, 1186 (1999) (Member Wasserman dissenting in relevant part)). The Agency also states that the proposals cannot "be considered a procedure or appropriate arrangement for the safeguarding of the information collected by the Agency." Id. at 2.
The Union asserts that the proposals would reduce the potential for identity theft by limiting access to the personal information of bargaining unit employees seeking to register their vehicles for on-base parking. Petition at 4, 5. The Union alleges that the Agency continues to request that employees provide their Social Security numbers and dates of birth to obtain parking decals despite the fact that it is not required under the MOU. Petition at 4; Response at 2. The Union also alleges that this information, which is protected by the Privacy Act, is stored in SFMIS and in DEERS. According to the Union, the individuals who have access to these two databases do not have a "need to know" the Social Security numbers and dates of birth of civilian employees. Petition at 5-6. Further, according to the Union, the Agency security police have demonstrated, in the issuance of parking tickets, that they do not adequately safeguard this information. Response at 4.
Regarding Proposal 1, the Union argues that the Agency has not established a "link" or "reasonable connection" between the collection of Social Security numbers and dates of birth for parking decals and its internal security practices. Id. at 2. The Union maintains that there is no legitimate reason for the Agency's security police and contractor gate guards to have access to employee Social Security numbers. Id. at 1-2. According to the Union, bargaining unit employees undergo extensive background checks and are issued sophisticated identification cards called "Common Access Cards" (CAC ID cards). Id. at 2. The Union argues that when bargaining unit employees show CAC ID cards, there is no doubt as to their identity. Id. The Union further argues that the Agency conceded that Social Security numbers and dates of birth are not necessary for processing parking decal requests by negotiating an MOU creating an alternate process for employees who do not want to provide this information. Id. The Union maintains that, because the Agency has other methods -- including CAC ID cards -- to confirm an employee's identity, and has made no showing of how the collection of Social Security numbers in the parking registration process is part of its internal security practices, it has not established a "reasonable connection" to a management right under § 7106(a)(1). Id. The Union also states that, after filing its petition and participating in the post-petition conference, it learned that the Air Force as a whole was planning to abandon the use of "base vehicle stickers" because of the mandatory "100% ID checks with the CAC ID cards[.]" Id. at 3-4 (citing Attach. 3, Bruce Rolfsen, Bases to stop issuing window decals for cars, Air Force Times, Feb. 12, 2007). The Union argues that this department-wide change is additional evidence that there is no "internal security" reason to request Social Security numbers and dates of birth from bargaining unit employees for parking decals. Id. at 4.
Regarding Proposal 2, the Union argues that there is no need to include Social Security numbers and dates of birth in the SFMIS and DEERS databases, which have no relation to civilian employee pay or payroll deductions. Id. at 2. The Union also alleges that the information in SFMIS, which is used by the Agency security police, is not appropriately safeguarded. In this regard, the Union states that the Agency's security police transmit this information over the radio so that street officers can include it on parking and traffic citations, which are then left unsecured on vehicles around the base. Petition at 4. In addition, the Union contends that the Agency has not offered any link or reasonable connection between its internal security practices and the inclusion of Social Security numbers or dates of birth in these databases. Response at 2.
VI. Analysis and Conclusions
The Agency's sole claim of nonnegotiability is that the Union's proposals affect management's rights to determine its internal security practices. It is well established that the right to determine internal security practices [ v63 p176 ] 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 an agency shows a link or reasonable connection between its security objective and a 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 at 1186. If such a link is established, then the Authority will not examine the extent to which the policy or practice adopted by an agency to achieve its security objectives actually facilitates the accomplishment of those objectives. AFGE, Local 1712, 62 FLRA 15, 17 (2007) (citations omitted). However, if an agency fails to demonstrate a reasonable connection between its practice and its security objective, then the Authority will find that management's right to determine its internal security is not affected. See NFFE, Local 2050, 36 FLRA 618, 639-40 (1990) (management's right not affected where agency failed to demonstrate a connection between method of notifying employees about criminal activity and internal security). See also AFGE, Local 2076, 47 FLRA 1379, 1381-82 (1993) (agency did not establish that arbitration award affected right to determine its internal security where it provided no evidence or argument in support of its claim).
In the present case, the Agency has failed to demonstrate a reasonable -- or any -- connection between collection and maintenance of Social Security numbers and dates of birth for parking registration purposes and its "plan to secure and safeguard its personnel, physical property and operations against internal and external risk." SOP at 2. In this regard, the Agency states only that the proposals are outside the duty to bargain because they would "interfere with the collection of information[.]" Id. This statement, which fails to explain even briefly how or why "collection of information" is involved in its internal security procedures or policies, is insufficient under Authority precedent to establish a reasonable connection. See, e.g., AFGE, Local 1712, 62 FLRA at 17 (agency established reasonable connection between its security objective and its policy of keeping an internal office door open by explaining that it would allow "immediate visual and physical access" to office).
When an agency fails to support its § 7106(a) arguments with an explanation of how management's rights under are affected, the Authority rejects the arguments. See NTEU, 60 FLRA 367, 380 (2004) (Authority declined consideration of an argument where agency presented "no explanation of how [the proposal] would affect its right to assign work"); AFGE, Nat'l Council of Field Labor Locals, Local 2139, 57 FLRA 292, 295 n.7 (2001) (Authority summarily dismissed "bare assertion" that proposal interfered with management's right to determine its mission because the agency made no arguments in support of the claim); United States Dep't of Veterans Affairs, Med. Ctr., Coatesville, Pa., 56 FLRA 966, 971 (2000) (Authority denied claim that arbitration award violated agency's right to determine its security where no rationale or explanations were provided); United States Dep't of Transp., Fed. Aviation Admin., Wash., D.C., 55 FLRA 322, 326-27 (1999) (Authority found that management's rights to assign work and determine budget were not affected when agency made only bare assertions). In view of the Agency's failure to provide any support for its argument, we find that the proposals do not violate management's right to determine its internal security practices. See NFFE, Local 2050, 36 FLRA at 639-40 (Authority found proposal negotiable where agency made only bare assertion that the proposal would interfere with its internal security policy).
Furthermore, the Agency did not respond in its SOP to any of the factual or legal assertions in the Union's petition and declined to file a reply addressing the additional arguments and assertions provided in the Union's response. Therefore, under Authority Regulations and precedent, the Agency has conceded the arguments and assertions supporting the Union's claim that the proposals do not affect management's right to determine its internal security. 5 C.F.R. 2424.32(c)(2); see also AFGE, Local 1226, 62 FLRA 459, 462 (2008) (Authority applied § 2424.32(c)(2) to find that union had "effectively conceded" agency's claim by failing to provide arguments addressing the claim).
Accordingly, we find that the Union's proposals are within the duty to bargain. See NAGE, Local R1-109, 53 FLRA 403, 412-14 (1997) (Authority found proposal negotiable where Agency's claim of nonnegotiability was unsupported).
The Agency shall, upon request, or as otherwise agreed to by the parties, negotiate over Proposals 1 and 2.