70 FLRA No. 22                                                                                                                                                                                     

 

National Treasury

Employees Union

(Union)

 

and

 

United States

Department of Homeland Security

Customs and Border Protection

(Agency)

 

0-NG-3278

(69 FLRA 355 (2016))

 

_____

 

DECISION AND ORDER

ON A NEGOTIABILITY ISSUE

 

December 20, 2016

 

_____

 

Before the Authority:  Carol Waller Pope, Chairman, and

Ernest DuBester and Patrick Pizzella, Members

 

I.             Statement of the Case

 

This matter is before the Authority on a negotiability appeal filed under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute).^[1]  The case concerns the negotiability of one proposal that permits Customs and Border Protection officers (officers) – working within the Agency’s automated‑passport‑control system (the kiosk system) – to sit when conducting passenger‑security inspections.  The Agency filed a statement of position (statement), to which the Union filed a response (response), and the Agency filed a reply (reply) to that response.

 

The main question before us is whether the proposal is contrary to the Agency’s right to determine internal-security practices under § 7106(a)(1) of the Statute^[2] or whether it falls within an exception to that right.  For the reasons discussed below, we find that the proposal affects that right and does not fall within an exception under § 7106(b)(2) or (3) of the Statute.^[3]  Thus, we find that the proposal is outside the duty to bargain.

 

 

 

II.            Background

               

This dispute arose after the Agency notified the Union that it intended to implement the kiosk system in certain national and international airports.  The kiosk system allows airline passengers to enter required “information into [an automated] kiosk . . .  instead of dictating it to [an officer].”^[4]  After the passengers enter the information into the kiosk, they proceed to a podium, where an officer conducts a “primary” security inspection.^[5]  The officer’s function is “to detect and prevent terrorists and instruments of terror from entering the United States” and to facilitate the efficient flow of passenger travel.^[6] 

               

The parties bargained over the implementation of the kiosk system and entered into a memorandum of understanding (MOU).  Approximately one year later, the Union reopened negotiations and offered proposals related to the kiosk system (which had been implemented).  Subsequently, the Union filed a negotiability petition.^[7]  That petition involved two proposals, including the one at issue here      (proposal one).^[8] 

 

In NTEU, the Authority dismissed the petition regarding one proposal that was directly related to a pending unfair‑labor‑practice (ULP) charge.^[9]  The dismissal was without prejudice to the Union’s right to refile its negotiability petition once the ULP charge was resolved.^[10] 

 

After the dismissal in NTEU, the parties resolved the ULP dispute but not the negotiability of the proposal.  As a result, the Union refiled its petition concerning that proposal, which is before us now.

 

 

 

 

 

 

 

 

 

 

 

               

III.          Preliminary Matter:  We deny the Union’s request to take official notice of the Agency’s filings in NTEU.             

               

The Union requests that the Authority take “judicial notice” of the Agency’s statement and reply in NTEU.^[11]  The Agency argues that those filings “have no bearing on the current proceeding.”^[12]  Under § 2429.5 of the Authority’s Regulations, the Authority may take official notice of matters not previously presented in prior proceedings when that “would be proper.”^[13]  The Authority has found it appropriate to take official notice of other FLRA proceedings.^[14] 

 

Here, the Union is requesting that we take official notice of the Agency’s arguments in NTEU because the Union, in its refiled petition, addresses some of those arguments.  However, as the Union acknowledges,^[15] the arguments in NTEU do not accurately reflect the current dispute.  When the Authority dismissed the Union’s petition in NTEU as to proposal one,^[16] it effectively dismissed the parties’ subsequent filings related to that proposal.^[17]  The Union fails to cite any decision where the Authority has taken official notice under a similar circumstance.^[18]  We find that it would be improper, under these circumstances, to take official notice of, or consider, the Agency’s filings in NTEU.  Instead, we consider only the filings submitted in this case.  Thus, we deny the Union’s request.

 

 

 

 

 

 

IV.          Proposal One

 

A.            Wording

 

CBP will provide ergonomically appropriate chairs, stools, etc. to be used while Officers inspect passengers after they have accessed the automated kiosks.  Nothing in this provision prevents Officers from standing while they inspect passengers if that is their choice.^[19]

 

B.            Meaning

 

The parties agree that the proposal requires the Agency to provide officers working at kiosk podiums “ergonomically appropriate chairs, stools, etc.”^[20]  The Union clarified that “etc.” means other furniture that permits officers to sit.^[21]  The parties also agree that the proposal grants “officers the option to sit or stand – at their discretion – while inspecting passengers.”^[22]

  

C.            Analysis and Conclusions

 

The Agency argues that the proposal affects its rights to determine internal‑security practices under § 7106(a)(1) and to determine the methods and means of performing work under § 7106(b)(1) of the Statute.^[23]  In order for an agency to demonstrate that a proposal is contrary to § 7106, the agency must allege and demonstrate that the proposal affects a management right.^[24]  If the agency does so, then the Authority will examine any union argument that the proposal is negotiable as a procedure or an appropriate arrangement under § 7106(b)(2) and (3) of the Statute, respectively.^[25]

 

 

 

 

 

 

 

 

 

 

 

 

1.             The proposal affects management’s right to determine internal‑security practices.

 

                As noted above, the Agency claims that the proposal affects its right to determine internal‑security practices under § 7106(a)(1) of the Statute.^[26]  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 and external risks.”^[27]  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 to determine internal‑security practices.^[28]  And where an agency has established a link between its policy or practice and its security objective, the Authority will not review the merits of the agency’s policy or practice in the course of resolving a negotiability dispute.^[29]

 

Here, the Agency identifies its security objective as safeguarding officers, the general public, and the nation’s airports from the risk of weapons and drugs.^[30]  The Agency asserts that its “current . . . policy” requires officers in the kiosk system to stand.^[31]  According to the Agency, standing officers are in an “engaged posture”;^[32] have unobstructed sightlines;^[33] and are able to “quickly . . . react” to emergency situations.^[34]  As to proposal one, the Agency argues that permitting an officer to sit while performing his or her duties places the officer in a “defensive position”;^[35] slows reaction time;^[36] and impairs the officer’s sightlines.^[37]

 

 

 

Citing NTEU and U.S. DHS, Bureau of CBP (DHS),^[38] the Union alleges that the Agency has not established a link between its security objectives and its policy.^[39]  Specifically, the Union asserts that an officer working in a non-kiosk inspection booth (the booth) is permitted to sit, despite the Agency’s alleged security concerns.^[40] 

 

In DHS, the agency had a policy that allowed officers to wear cargo shorts in some locations, but not others.^[41]  The Authority found that the agency did not establish a link or reasonable connection between its policy and its alleged security objective because the agency “fail[ed] to articulate any security differences . . . that warrant[ed] a different uniform policy in                [the different] locations.”^[42]

 

Here, unlike in DHS, the Agency identifies relevant security determinations that justify a different policy.^[43]  In particular, the Agency explains that an officer in the kiosk system “perform[s] a different primary inspection [within] a different construct.”^[44] 

 

Regarding the inspection, the Agency argues that an officer in a booth uses a computer monitor to input passengers’ “administrative information,”^[45] and, as a result, the officer “split[s] [his or her attention] between . . . data gathering and [passenger] assess[ment].”^[46]  But, in the kiosk system, an officer’s “administrative role is removed”^[47] because the passenger completes that portion of the inspection using the automated kiosks.^[48]  This results in a “length[ier], more thorough[,] and safer enforcement inspection” in the kiosk system.^[49]  The Union claims that a booth officer performs the “exact same [security] inspection” as a kiosk officer.^[50]  However, in the MOU, the Union agreed that the kiosk system “allows the [officer] to focus more on the enforcement part of his[ or] her duties” and “is designed to increase the amount of time [the o]fficer has to perform . . . enforcement examination[s].”^[51]

As to the difference between “construct[s],”^[52] the Agency argues that the kiosk system, compared to the booth construct, does not provide the same “physical barriers between the officer and the [passenger].”^[53]  The Union does not dispute this difference and, in fact, acknowledges that, in the kiosk system, an officer is exposed to a greater threat from attack because the podiums do not offer “proper separation of the officer and the passenger.”^[54]

 

Based on the foregoing, we find that the Agency has sufficiently articulated security differences that warrant different policies with regard to booth officers and kiosk officers.  Accordingly, we find that DHS is distinguishable.^[55]  We also find, based on the above, that the Agency has demonstrated that its policy of requiring kiosk officers to stand is reasonably connected to its stated purpose of safeguarding passengers, officers, and airport property.^[56] 

 

To the extent that the Union argues that the Agency has not demonstrated the requisite link because the Agency has not offered proof that standing officers are better suited to accomplish the Agency’s security objectives,^[57] the Authority does not examine the extent to which a policy or practice adopted by an agency to achieve its security objectives actually facilitates the accomplishment of those objectives.^[58]

 

By permitting officers in the kiosk system to sit, the proposal conflicts with the Agency’s policy requiring those officers to stand.  Therefore, we find that the proposal affects management’s right to determine internal‑security practices under § 7106(a)(1) of the Statute. 

 

2.             The proposal is not a procedure under § 7106(b)(2) or an appropriate arrangement under § 7106(b)(3) of the Statute. 

 

The Union contends that, even if the proposal affects a management right under § 7106 of the Statute, the proposal is negotiable as a procedure^[59] or an appropriate arrangement^[60] under § 7106(b)(2) and (3) of the Statute,^[61] respectively.

 

1. Appropriate Arrangement

 

When determining whether a proposal is within the duty to bargain under § 7106(b)(3), the Authority initially determines whether the proposal is intended to be an “arrangement” for employees adversely affected by the exercise of a management right.^[62]  If the proposal is an arrangement, the Authority determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management rights.^[63]  The Authority makes this determination by weighing “the competing practical needs of employees and managers” in order to ascertain whether the benefits to employees flowing from the proposal outweigh the proposal’s burdens on the exercise of the management right involved.^[64]

 

Even assuming that the proposal constitutes an arrangement, we find, for the following reasons, that it is not appropriate because it excessively interferes with the Agency’s right to determine internal‑security practices.^[65] 

 

As described by the Union, the Agency’s current policy results in officers standing for prolonged periods.^[66]  The Union alleges that the proposal – by permitting officers to sit – will:  alleviate and prevent the multitude of physical and mental conditions that prolonged standing causes;^[67] reduce workers’ compensation claims and sick‑leave requests;^[68] and improve employee morale.^[69]  The Agency disputes that the proposal will benefit the officers^[70] and claims, without contradiction, that there have been no reported injuries due to standing in the kiosk system.^[71]  The Agency also asserts that it has already taken steps to mitigate “any [adverse] effects of standing.”^[72]  Specifically, the Agency has provided officers with “cushioned foot support,”^[73] thus limiting the alleged benefit of the Union’s proposal.^[74]

 

With regard to the burden on management’s rights, the proposal would countermand the Agency’s current internal‑security practice and require the Agency to exercise its internal‑security right in a different manner.^[75]  A proposal such as this – which negates the Agency’s internal‑security determination entirely – is not an “appropriate” way to ameliorate a right’s adverse effects within the meaning of § 7106(b)(3).^[76]

 

Based on the forgoing, we find that the proposal significantly burdens the Agency’s right to determine internal‑security practices and this burden outweighs any benefits that the proposal would afford to the officers.  Consequently, we find that the proposal excessively interferes with management’s right to determine internal‑security practices and is not an appropriate arrangement.

 

 

 

 

 

 

 

ii.             Procedure

 

The Union asserts that the proposal is a negotiable procedure under § 7106(b)(2) of the Statute.^[77]  In the Union’s view, the proposal neither prohibits nor interferes with the Agency’s exercise of its management rights.^[78]  In contrast, the Agency argues that the “proposal directly interferes with [the Agency’s]    [k]iosk[ system] . . . by removing the [o]fficer from the safest enforcement position.”^[79]

 

The Union cites no authority to support its contention that the proposal is negotiable as a procedure.^[80]  Moreover, as described above, the proposal determines, in substance, how the Agency will safeguard its personnel, physical property, and operations in the kiosk system.^[81]  And because the proposal prohibits the Agency from maintaining its chosen internal‑security practice of having officers stand, the proposal does not resemble proposals or provisions that the Authority has held to be procedures under § 7106(b)(2).^[82]  Accordingly, we find that the proposal does not concern the procedures that the Agency will observe in exercising its right to determine internal‑security practices, as set forth in § 7106(b)(2).

 

 

 

 

Finally, as noted above, the Agency also argues that the proposal affects its right to determine the methods and means of performing work under § 7106(b)(1) of the Statute.^[83]  The Union contests this claim,^[84] and argues that the proposal is negotiable as either an appropriate arrangement or a procedure.^[85]  Because we have found that the proposal affects management’s right to determine internal‑security practices and does not fall within an exception under § 7106(b)(2) or (3) of the Statute, the proposal is outside the duty to bargain even if it is an appropriate arrangement or a procedure for another management right.^[86]  Consequently, it is unnecessary to resolve whether the proposal affects management’s right to determine the methods and means of performing work under § 7106(b)(1), or whether it is an appropriate arrangement or a procedure for the exercise of that right.^[87]

 

V.            Order

 

                We dismiss the petition.