[ v44 p637 ]
44:0637(54)NG
The decision of the Authority follows:
44 FLRA No. 54
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
LOCAL 1482
(Union)
and
U.S. DEPARTMENT OF DEFENSE
DEFENSE MAPPING AGENCY
HYDROGRAPHIC/TOPOGRAPHIC CENTER
WASHINGTON, D.C.
(Agency)
0-NG-1838
DECISION AND ORDER ON NEGOTIABILITY ISSUES
March 27, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of five proposals.
Proposal 1 requires the Agency to take steps to ensure that unauthorized employees do not have access to information in the Agency's Data Integration System (DIS). The proposal also requires the Agency to change the passwords on the system in accordance with applicable laws, rules, and regulations and to establish a time frame for changing the system's password(s). We find that Proposal 1 constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
Proposal 2 requires the Agency to establish certain internal security policies and practices to: (1) protect personal information contained in DIS from unauthorized use, modification, destruction or disclosure; and (2) safeguard personal information contained in automated records, including input and output documents, reports, magnetic tapes, disks, and on-line computer storage, in order to prevent such information from being accessed or disclosed improperly. We find that Proposal 2 constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
Proposal 3 concerns the Union's access to information contained in DIS. We find that Proposal 3 is negotiable.
Proposal 4 prohibits the Agency from using DIS to electronically monitor employees' work performance. We find that Proposal 4 is nonnegotiable because it directly and excessively interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.
Proposal 5 provides for the establishment of a joint labor-management committee to make recommendations concerning matters pertaining to the use of DIS. The proposal also requires: (1) the Union to approve management's choice of bargaining unit members as management representatives to serve on the committee; and (2) the Director of the Office to respond to committee recommendations. We find that Proposal 5 is negotiable.
II. Background
The Union's proposals were submitted in response to the Agency's decision to implement DIS. DIS replaces a variety of the Agency's existing data subsystems with a unified software and hardware system consisting of five mainframe computers. The mainframe computers are accessed by authorized users through remote terminals in five locations, including the Agency's Louisville, Kentucky Office. Eight remote terminals are located at the Louisville Office. DIS is used, among other things, to assist with project planning, resource allocation, source material procurement, production status determination, resource expenditure monitoring, and project documents. The information contained in DIS includes data retrievable by an employee's "personal identifier" that pertains to the employee's potential retirement date, badge number, duty entry date, and amount of time spent working on projects. Statement of Position (Statement) at 7. The DIS also contains "classified national security information" which is used routinely to generate reports and documents, including project assignment letters and product preparation guidelines. Id. at 12. "[S]ource information necessary for the production of Agency charts and maps" is also contained in DIS. Id. at 3.
At the Louisville Office, the Agency employs about 300 employees, 250 of whom are bargaining unit employees.
III. Proposal 1
SECURITY ON INFORMATION ON D.I., CHANGING OF THE PASSWORD & RESTRICTION OF ACCESS TO INFORMATION:
The Employer will make appropriate arrangements to ensure that unauthorized employees do not have access to information in D.I. In addition the Employer will ensure that employees who have access do not have information available to them that is not necessary for the function of their task, i.e. access to files will be restricted to ensure privacy information on employees is not reviewed, copied, or access[i]ble to employees who have no need to know the information.
The password(s) on the D.I. System will be changed in accordance with applicable laws, rules regulations [and] this agreement. The time frame determined by the Employer to change the password will ensure the security of the information on the system.
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 1 directly interferes with its right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency asserts that the proposal "seeks to establish a security practice under which employees will be given access to information on [DIS] only when the information is needed to perform their specific work task." Id. at 4-5. The Agency claims that the proposal would prevent it from "establishing an internal security practice which would allow an employee access to more [DIS] information tha[n] was actually needed to perform the employee's task." Id. at 5.
The Agency explains that its "current security practice does allow employees access to certain kinds of [DIS] data, such as source information, which is not needed to perform their assigned tasks." Id. However, the Agency claims that its security practice "strictly limits an employee's access to [DIS] information pertaining to other employees." Id. According to the Agency, an employee is not given access to DIS information concerning other employees "unless the employee needs that information to accomplish a task." Id. The Agency argues, notwithstanding this practice, that it has a right under section 7106(a)(1) of the Statute "to determine without bargaining which employees should have access after balancing the security risk against work performance requirements." Id. The Agency claims that "[t]he inclusion of the phrase 'appropriate arrangements to ensure' in Proposal 1 appears to be an attempt to impose substantive criteria upon the Agency's exercise of its right to determine its internal security practices." Id. at 6.
The Agency also asserts that the proposal directly interferes with its right to determine its internal security practices under section 7106(a)(1) of the Statute because the proposal would prevent it from establishing a security practice for DIS which does not involve passwords. The Agency argues that "[t]he requirement to change passwords would prevent the Agency from determining whether the changing of passwords is an appropriate security practice" for DIS. Id. at 5.
The Agency further contends that the proposal directly interferes with its right to determine the technology, methods, and means of performing work under section 7106(b)(1) of the Statute because the proposal could require the Agency to "add additional, or maintain existing, restrictions and access codes" in DIS. Id. at 6. The Agency asserts that it has not elected to negotiate the technology, methods, and means of performing work with the Union. The Agency contends that the proposal would limit the Agency's ability to determine the "configuration" of DIS, which is a "technology, method, and means of performing [the Agency's] work." Id. The Agency asserts that the DIS data base is "an essential element in the operation of [DIS]," and that employees access this data base to obtain information necessary to perform their work. Id. at 3.
The Agency argues that Proposal 1 does not constitute a negotiable appropriate arrangement because it excessively interferes with management's rights to determine its internal security practices and the technology, methods and means of performing work. The Agency asserts that, on balance, the Agency's need to exercise its rights outweighs the personal privacy interests of employees in DIS information. The Agency states that DIS "generally contains information about production" and "very little personal information." Id. at 7. The Agency notes, however, that the "[DIS] database does contain data retrievable by an employee's personal identifier concerning the employee's potential retirement date, badge number, duty entry date, and amount of time spent working on projects." Id. The Agency further states that although "raw data on time spent by an employee on projects may be extracted from the [DIS] database for use in evaluating an employee's performance, information about an employee's actual rating is not maintained" in the data base. Id. Further, the Agency contends that "[n]o data on the quality of an employee's work is maintained in [DIS]." Id.
Citing the Authority's decision in Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783, 814-16 (1991) (POPA), the Agency contends that the employees' personal privacy interest in the information contained in DIS "is relatively slight." Id. In POPA, the Authority found that employees' privacy interest in review sheets, that is, management's written technical evaluations of particular recommendations made by employees with respect to patent applications, was "somewhat limited." 39 FLRA at 816. The Authority found that the employees' privacy interest in such information was "somewhat limited" because the review sheets did not constitute the agency's overall evaluation of employee performance, but were limited to technical evaluations of particular recommendations with respect to patent applications. Id. The Agency contends that the information contained in the DIS data base concerning employees' production is "roughly analogous" to the review sheets considered by the Authority in POPA. Statement at 7.
2. Union
According to the Union, before DIS was implemented, employee access to various information was limited "to supervisors, certain management officials and employees who keyed the information into computers." Response at 2. The Union contends that now "all employees who have access to [DIS] could potentially have access to all information." Id. The Union asserts that employees now having access to various information include "all supervisors, management officials, and 25% of the bargaining unit employees." Id. According to the Union, "a password [is necessary in order for an employee] to log on[]," or access, computer data bases in the Louisville Office. Id. The Union states that the use of a password gives employees "access to various programs/databases/etc." Id. The Union asserts that "[t]his significant change is the basis" for bargaining. Id.
The Union argues that Proposal 1 does not directly interfere with the Agency's right to determine its internal security practices and the technology, methods, and means of performing its work under section 7106(a)(1) and (b)(1) of the Statute. The Union asserts that the proposal is a negotiable procedure under section 7106(b)(2) of the Statute or, alternatively, a negotiable appropriate arrangement under section 7106(b)(3).
The Union states that through Proposal 1 it is seeking "to negotiate" concerning the Agency's current practice with respect to how the Agency will prevent or control employees' access to information contained in DIS, and "not [to negotiate concerning] all possibilities that may occur in the future." Id. at 2. The Union disputes the Agency's contention that the proposal would prevent the Agency from establishing a computer system that does not involve passwords. The Union asserts that the Agency is merely speculating over the possible effects of the proposal and that such speculation is not sufficient to render the proposal nonnegotiable. The Union states that Proposal 1 is "not" intended to "absolutely prohibit the Agency from making future changes in [DIS]." Id. at 3. Rather, the Union claims that the proposal is intended to provide "general language[] so a problem with access to [DIS] information could be grieved with relief given to employees." Id. The Union states that the proposal places "no restrictions on the procedures" that management may use as indicated by the first sentence of the proposal. Id.
According to the Union, the intent of the second sentence of Proposal 1 is to safeguard "Privacy Act information that is contained in [DIS] files" and not to require that "[DIS] be reconfigured or render[ed] impossible to use." Id. The Union contends that this sentence places no restrictions on management except to require that management comply with the Privacy Act. The Union asserts that the intent of the second paragraph of the proposal is to ensure that the Agency safeguards access to the system and the information contained therein by periodically changing the password. The Union contends that management routinely changes numbers on locks and safes in the office to protect information. The Union asserts that the second paragraph of the proposal would only require management to follow proper security practices with respect to access to DIS.
The Union contends that its proposal will mitigate the adverse impact that the "release of classified material, corruption, modification or deletion of files, loss of control [and] accountability/reliability of information[]" would have on unit employees. Id. at 4.
B. Analysis and Conclusions
We find that Proposal 1 constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
1. Proposal 1 Directly Interferes with Management's Right under Section 7106(a)(1) to Determine its Internal Security Practices
The Agency contends that the proposal directly interferes with management's right to determine its internal security practices. We agree.
An agency's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the right to determine the policies and take actions which are part of its plan to secure or safeguard its personnel, its physical property, and its operations. National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 625 (1990) (EPA). An agency's right to determine its internal security practices also includes management action to prevent improper or unauthorized disclosure of privileged or confidential information or to prevent disruption of the agency's activities. Id. at 639; National Treasury Employees Union, Chapter 153 and Department of the Treasury, U.S. Customs Service, Region II, 21 FLRA 841 (1986) (U.S. Customs Service, Region II). Where an agency shows a link or reasonable connection between its goal of safeguarding its personnel or property, including information, and its practice or decision designed to implement that goal, a proposal that substantively restricts or precludes the agency's practice or decision directly interferes with management's right under section 7106(a)(1) of the Statute. EPA, 36 FLRA at 639.
Proposal 1 concerns access to information contained in DIS. The Union does not dispute the Agency's claim that: (1) the Agency's work involves producing "special topographic products of terrain data to support special military activities and operations[] and provid[ing data processing] expertise to the [Agency's] cartographic program as related to mapping and weapons systems requirements"; and (2) DIS is used by the Agency to generate reports which "contain[] classified national security information." Statement at 12. The record also indicates that employees' work projects involve classified information and that the Agency uses personal identifiers to determine the time spent by employees on such projects. Because personal information in DIS is connected to the Agency's classified work projects, access to personal information in DIS may also, depending on the data, involve access to classified information. We find that the decision to grant or restrict access to information contained in DIS is linked to the Agency's internal security practice of safeguarding or protecting the Agency's property or personal and classified information. Therefore, we conclude that the Agency's decision as to how it will prevent or control access to information contained in DIS constitutes an integral part of the Agency's determination of the internal security practices it will adopt for that purpose.
We now address the specific paragraphs of Proposal 1.
a. First Paragraph of Proposal 1
The first and second sentences of the first paragraph of Proposal 1 would require management to: (1) "make appropriate arrangements" to ensure that unauthorized employees do not have access to information contained in DIS; and (2) limit employees authorized access to DIS only to information necessary to perform their particular work task. Under this portion of the proposal, management would be required to take action to protect information contained in DIS and would be prevented from establishing a security practice which granted an employee access to information other than that needed to perform a particular work task. This portion of the proposal prescribes specific criteria governing management's determination of the internal security practices that it will employ to safeguard information contained in DIS.
Proposals which establish substantive criteria governing the exercise of a management right directly interfere with that right. See American Federation of Government Employees, Council of Prisons, Leavenworth, Kansas, 42 FLRA 1295, 1303 (1991) (Leavenworth, Kansas); EPA, 36 FLRA at 625-27. It is not necessary that a proposal dictate the specific action that an agency must take in order for that proposal to constitute a substantive limitation on the exercise of a management right. A general criterion that would restrict the range of an agency's discretion pursuant to a management right would similarly constitute a substantive limitation on that right. See id.
The first and second sentences of the first paragraph of Proposal 1 establish substantive criteria that govern the actions the Agency will take to control or restrict access to protect personal and classified information pertaining to unit employees that is contained in DIS. The first sentence establishes a substantive criterion that governs the actions that the Agency is to take in protecting such information. That is, by requiring the Agency to make "appropriate arrangements" to prevent unauthorized access to personal and classified information pertaining to unit employees that is contained in DIS, the first sentence requires the Agency to take steps to prevent access. The second sentence prescribes the criteria governing employee access to that information by limiting employees who are authorized to have access to DIS only to the information that is needed to perform their particular work task. Because the first and second sentences of Proposal 1 establish substantive criteria controlling access to personal and classified information involving unit employees contained in DIS, we conclude that these sentences directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. See EPA, 36 FLRA at 625-27 (proposal establishing a substantive criterion governing management's determination of its internal security practices found to directly interfere with management's right to determine its internal security practices); id. at 631-32 (proposal requiring management action to address a specific security problem found to directly interfere with management's right to determine its internal security practices).
We note the Union's statement that the intent of the second sentence of Proposal 1 is to require compliance with the Privacy Act. In American Federation of Government Employees, AFL-CIO, Department of Education Council of AFGE Locals and U.S. Department of Education, 38 FLRA 1068, 1075-76 (1990) (Department of Education), request for reconsideration denied, 39 FLRA 1241 (1991) petition for review filed sub nom. United States Department of Education v. FLRA, No. 91-1219 (D.C. Cir. May 10, 1991), we found that a proposal requiring an agency to exercise its rights under section 7106(a)(1) of the Statute in accordance with "external legal limitations (that is, the United States Constitution, applicable laws, rules and regulations)," directly interfered with management's rights under that section. Id. at 1076. In this case, the proposal does not literally require compliance with the Privacy Act. However, even if we interpreted the second sentence of the proposal as requiring compliance with that law, we would nevertheless conclude, based on our holding in Department of Education, that the second sentence directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
b. Second Paragraph of Proposal 1
The second paragraph of Proposal 1 would require the Agency to change the password(s) used to gain access to information contained in DIS "in accordance with applicable laws, rules[,] regulations [and the] agreement" and in a time frame that will ensure the security of the information. According to the Union, this portion of the proposal would only require the Agency "to follow proper security practices." Response at 3. The Union does not cite to any specific law, rule or regulation that deals with an agency's use of passwords. However, based on the plain wording of the proposal, we interpret the proposal as only requiring the Agency to comply with applicable laws, rules or regulations.
Proposals requiring management to exercise its rights under section 7106(a)(1) of the Statute in accordance with applicable laws, rules and regulations directly interfere with the exercise of such rights. See Department of Education. As noted above, we found in Department of Education that a proposal requiring the agency to exercise its rights under section 7106(a)(1) of the Statute in accordance with applicable laws, rules, and regulations subjected the exercise of management's rights under that section to the limits of applicable law and regulation. Accordingly, we concluded that because the proposal would impermissibly limit the exercise of management's right to determine its internal security practices under section 7106(a)(1) of the Statute, the proposal directly interfered with that right.
As we found above, management's decision as to how it will restrict or grant access to information contained in DIS is an exercise of the Agency's right under section 7106(a)(1) of the Statute to establish its internal security practices. The use of passwords is one measure by which the Agency controls access to data on the DIS. Consequently, by requiring the Agency to exercise its right under section 7106(a)(1) of the Statute by changing the password(s) in accordance with applicable laws, rules and regulations, the second paragraph of Proposal 1 would subject the exercise of that right to the limits of applicable law and regulation. The second paragraph of Proposal 1, like the proposal in Department of Education, therefore, would directly interfere with the exercise of management's right to determine its internal security practices under section 7106(a)(1) of the Statute. Accordingly, we conclude that the second paragraph of Proposal 1 directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
2. Proposal 1 Does Not Directly Interfere with the Agency's Rights to Determine its Technology, Methods, and Means of Performing Work
We find that the Agency has not established that Proposal 1 directly interferes with its rights under section 7106(b)(1) of the Statute. The Authority employs a two-part test to determine whether a proposal directly interferes with management's right to determine the "technology" used in "performing work." In order to sustain such a claim, an agency must show: (1) the technological relationship of the matter addressed by the proposal to accomplishing or furthering the performance of the agency's work; and (2) how the proposal would interfere with the purpose for which the technology was adopted. See, for example, American Federation of Government Employees, AFL-CIO, National Council of Social Security Field Office Locals and Department of Health and Human Services, Social Security Administration, 24 FLRA 842 (1986) (Proposals 2-12).
As to the methods and means of performing work, the Authority has construed "method" as referring to the way in which an agency performs its work. National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 406-07 (1990). "Means" refers to any instrumentality, including an agent, tool, device, measure, plan or policy used by an agency for the accomplishment or furtherance of its work. Id. at 407. The term "performing work" is intended to include those matters that directly and integrally relate to the agency's operations as a whole. Id.
The Authority also employs a two-part test to decide whether a proposal directly interferes with management's right to determine the methods and means of performing work. First, an agency must show a direct relationship between the particular method or means the agency has chosen and the accomplishment of the agency's mission. Second, the agency must show that the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. See, for example, id. at 406-09.
In this case, DIS is used by the Agency in the accomplishment of its work pertaining to the preparation of topographic, aeronautical and planimetric products. We find that the Agency has not established how the first paragraph of Proposal 1 would directly interfere with the mission-related purpose for which DIS was adopted. That is, Proposal 1 does not in any manner conflict with the Agency's decision to use DIS in the performance of its work. Nothing in Proposal 1 precludes the Agency from using DIS to prepare topographic, aeronautical and planimetric products. Rather, Proposal 1 only concerns the control and restriction of access by unauthorized employees to personal and classified information contained in DIS involving unit employees.
Consequently, we conclude that Proposal 1 does not directly interfere with management's right to determine the technology, methods and means of performing work within the meaning of section of 7106(b)(1) of the Statute.
3. Proposal 1 Does Not Constitute a Negotiable Procedure under Section 7106(b)(2) of the Statute
We turn next to the Union's contention that Proposal 1 constitutes a negotiable procedure under section 7106(b)(2) of the Statute. Proposals that directly interfere with the substantive exercise of a management right are not negotiable as procedures under section 7106(b)(2) of the Statute. See American Federation of Government Employees, Local 2879 and U.S. Department of Health and Human Services, Social Security Administration, Chula Vista District, San Diego, California, 38 FLRA 244, 248 (1990) (Social Security Administration); Department of Defense v. FLRA, 659 F.2d 1140, 1151-52 (D.C. Cir. 1981), cert. denied sub nom. 455 U.S. 945 (1982). Because we have found that Proposal 1 directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute, we conclude that it does not constitute a negotiable procedure under section 7106(b)(2).
4. Proposal 1 Constitutes an Appropriate Arrangement under Section 7106(b)(3) of the Statute
Having determined that Proposal 1 directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute, we next decide whether the proposal nonetheless constitutes an appropriate arrangement under section 7106(b)(3).
To determine whether a proposal constitutes an appropriate arrangement, we must determine whether the proposal is: (1) intended as an arrangement for employees adversely affected by the exercise of a management right; and (2) appropriate because it does not excessively interfere with the exercise of management's right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard).
The Union contends that Proposal 1 is intended to protect unit employees from the anticipated adverse effect of unauthorized employees having access to personal information contained in DIS. The Union contends that the proposal is intended to protect employees' privacy interests and to alleviate the adverse impact on unit employees that could result from the improper "release of classified material" or the unauthorized "modification or deletion of files" contained in DIS. Response at 4. We conclude, therefore, that Proposal 1 is intended as an arrangement.
We next determine whether Proposal 1 excessively interferes with management's right to determine its internal security practices so as not to constitute an appropriate arrangement. In determining whether a proposal excessively interferes with a management right, we weigh "the competing practical needs of employees and managers" to determine whether the benefit to employees afforded by the proposal is greater than the burden placed by the proposal on the exercise of the management right or rights involved. Kansas Army National Guard, 21 FLRA at 31-34.
The Agency contends that Proposal 1 excessively interferes with its right to determine its internal security practices. The Agency argues that, on balance, its need to determine its internal security practices outweighs the privacy interests of employees. The Union contends that DIS will increase the number of employees who have access to large amounts of information. The Union asserts that employees need to be protected from the potential improper release of personal and classified information and the unauthorized modification or deletion of files. The Union asserts that Proposal 1 would ensure that measures are taken to assure the reliability of and accountability for personal information.
Proposal 1 affects the Agency's right to determine its internal security practices by requiring management to: (1) make appropriate arrangements to safeguard the information contained in DIS; (2) limit employees authorized to have access only to information necessary to perform their work; and (3) change the password(s) instituted by management in accordance with applicable laws, rules, and regulations. Although the proposal would require management to take these actions in implementing its internal security practices, the proposal allows management the discretion to implement the proposal. Under the proposal, decisions as to what appropriate measures the Agency should take to prevent unauthorized employees from gaining access are left to management. Also, requiring management to limit employees authorized to have access to DIS only to that information that is necessary to perform their work would not impose a significant burden on management. Management acknowledges that it already "strictly limits an employee's access to [DIS] information pertaining to other employees . . . unless the employee needs that information to accomplish a task." Statement at 5.
Further, the portion of the proposal concerning password(s) would only require the Agency to comply with applicable laws, rules, and regulations in its use of the password as a security measure. In particular, we have held that "the existence of applicable laws, rules[,] and regulations already serves to limit agency action and indicates that an agency's interest in being able to act without regard to those provisions and without challenge to the legality of its action, such as in arbitration procedures, is negligible." Department of Education, 38 FLRA at 1078. See also American Federation of Government Employees, AFL-CIO, Local 53 and U.S. Department of the Navy, Navy Material Transportation Office, Norfolk, Virginia, 42 FLRA 938, 956 (1991).
Proposal 1 would benefit employees by ensuring proper access to personal and classified information pertaining to unit employees that is contained in DIS. The proposal would protect employees from unauthorized access to information about them, or work projects for which they are responsible, and would protect against the improper release or modification of such information. The proposal would also reduce the possibility that employees would be held accountable for improper release or modification of information and assure them that personal information in the system is secure.
We note the Agency's statement that DIS contains "very little personal information" and, therefore, that employees' privacy interest in the protection of this information is limited. Statement at 7. However, we also note that the Agency acknowledges that the system contains "data retrievable by an employee's personal identifier concerning the employee's potential retirement date, badge number, duty entry date, and amount of time spent working on projects." Id. We find that employees have more than a limited privacy interest in the protection of this information. Through the use of personal identifiers, an individual having access to the system could gain personal information concerning an employee as well as information that could be used in evaluating an employee's work performance.
Further, we find, contrary to the Agency, that our decision in POPA is inapposite to this case because the issues related to the proposal in POPA are different from the issues concerning Proposal 1. The proposal in POPA concerned the disclosure of information about unit employees to the union to perform its representational responsibilities. Proposal 1 seeks to restrict unauthorized access to information about unit employees. Specifically, in POPA, the proposal, in part, required the agency to disclose to the union review sheets prepared by an employee's reviewer, or some other management official, that summarized the reviewer's conclusions on an examiner's actions or work. After balancing the privacy interests of employees against the interest of the public in assuring that the agency administered its programs in a fair and consistent manner, we concluded that disclosure of the review sheets to the union would not constitute an unwarranted invasion of employees' privacy. Thus, the issue in POPA concerned whether requiring disclosure of specified information about employees to the union would violate the Privacy Act. The issue as to Proposal 1 is whether limiting access to information about employees violates management's right to determine its internal security practices. Because the proposal in POPA and Proposal 1 address different issues, we conclude that POPA is not applicable to this case.
We conclude, therefore, that on balance the benefit to employees of restricting access to personal and classified information in DIS outweighs the burden placed on the Agency by requiring the adoption of certain security measures and by requiring compliance with the limited criteria governing access to information. Further, the proposal also benefits the Agency by ensuring no unauthorized release of personal or classified information. Consequently, we find that Proposal 1 does not excessively interfere with management's right to determine its internal security practices and is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
Accordingly, we conclude that Proposal 1 is negotiable.
IV. Proposal 2
THE FOLLOWING SECURITY POLICIES AND PROCEDURES WILL BE USED IN THE D.I. AUTOMATED INFORMATION SYSTEM.
(a) To ensure the security and confidentiality of personnel records, in whatever form, each agency shall establish administrative, technical, and physical controls to protect information in personnel records from unauthorized access, use, modification, destruction, or disclosure. As a minimum, these controls shall require that all persons whose official duties require access to and use of personnel records be responsible and accountable for safeguarding those records and for ensuring that the records are secured whenever they are not in use or under the direct control of authorized persons. Generally, personnel records should be held, processed, or stored only where facilities and conditions are adequate to prevent unauthorized access.
(b) In addition to following the security requirements of this part, managers of automated personnel records shall establish administrative, technical, physical, and security safeguards for data about individuals in automated records, including input and output documents, reports, punched cards, magnetic tapes, disks, and on-line computer storage. The safeguards must be in writing to comply with the standards on automated data processing physical security issued by the National Bureau of Standards, U.S. Department of Commerce, and, as a minimum, must be sufficient to:
(1) Prevent careless, accidental, or unintentional disclosure, modification, or destruction of identifiable personal data;
(2) Minimize the risk that skilled technicians or knowledgeable persons could improperly obtain access to, modify, or destroy identifiable personnel data;
(3) Prevent casual entry by unskilled persons who have no official reason for access to such data;
(4) Minimize the risk of an unauthorized disclosure where use is made of identifiable personal data in testing of computer programs;
(5) Control the flow of data into, through and from the agency computer operations;
(6) Adequately protect identifiable data from environmental hazards and unnecessary exposure; and;
(7) Assure adequate internal audit procedures to comply with these procedures.
The disposal of identifiable personal data in automated files is to be accomplished in such a manner as to make the data unobtainable to unauthorized personnel. Unneeded personal data stored on reusable media such as magnetic tapes and disks must be erased prior to release of the media for reuse.
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 2 directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute and, therefore, that the proposal is not a negotiable procedure under section 7106(b)(2). The Agency states that "[t]he [DIS] database is Agency property which the Agency protects from damage or unauthorized disclosure." Statement at 9. The Agency states that the Authority has held that an agency's internal security practices "include those policies and actions which are part of its plan to safeguard its personnel, physical property, and operations from internal and external threats and to prevent the unauthorized disclosure of information." Id. (footnote omitted). The Agency asserts that "Proposal 2 clearly concerns matters which come within the ambit of the internal security practices of the Agency." Id. at 9-10. The Agency further asserts that the inclusion of the phrase "to ensure the security and confidentiality" in the proposal "is intended to impose substantive requirements upon the Agency's internal security practices." Id. at 10.
According to the Agency, the language of Proposal 2 is "taken verbatim" from 5 C.F.R. §§ 293.106(a) and 293.107-- Office of Personnel Management (OPM) regulations pertaining to personnel records. Id. The Agency argues that such regulations are not applicable to DIS because this system "contains no personnel records," but consists of "production records which contain very little personal information." Id.
The Agency states that the "Union has not clearly established" that the proposal is intended as an arrangement. Id. at 11. However, the Agency claims that if the Union intends the proposal as an arrangement for employees adversely affected by the exercise of a management right, it is not an appropriate arrangement because it excessively interferes with its right to determine its internal security practices for the same reasons as stated with respect to Proposal 1.
2. Union
The Union contends that Proposal 2 does not directly interfere with management's right to determine its internal security practices, but rather is a negotiable procedure under section 7106(b)(2) of the Statute. The Union states that if the proposal is found to directly interfere with management's right, then it is intended as an appropriate arrangement for employees adversely affected by the exercise of that right.
The Union states that the intent of Proposal 2 is "to provide protection for the information [in the DI database]," that is, to ensure that the requirements for safeguarding personal information in the system "conform to the Government-wide rules and regulations" as stated in 5 C.F.R. §§ 293.106(a) and 293.107(a) and (b). Response at 5. The Union claims that the regulations address the "safeguarding of personal individual information which is contained in [DIS]" without requiring specific procedures that must be followed by management. Id. The Union argues that requiring management to adhere to laws, rules, and regulations that the Agency is bound to follow is not an infringement on management's rights to determine its internal security practices.
The Union disputes the Agency's contention that DIS contains "no personnel records[,]" and notes that the system will be used to generate performance reports for employees. Id.; Petition, Enclosure 6 (Standard Operating Procedures [SOP] E95-1). According to the Union, the Agency acknowledges that the DIS will include "'quality ratings of map sheets,'" and that "'data [is] retrievable by an employee[']s personal identifier concerning the employee[']s potential retirement date, badge number, duty entry date, and amount of time spent on projects.'" Response at 5.
The Union asserts that if the Agency is not required to follow the Government-wide rules and regulations employees will be adversely affected because the personal information on DIS will be accessible to unauthorized employees. The Union also argues that if the information in the data base is not destroyed properly, confidential information could inadvertently fall into the hands of unauthorized individuals resulting in a violation of employees' rights under the Privacy Act.
B. Analysis and Conclusions
We find, for the reasons discussed below, that Proposal 2 constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
1. Proposal 2 Directly Interferes with Management's Right under Section 7106(a)(1) of the Statute to Determine Its ternal Security Practices
Proposal 2 concerns the establishment of certain internal security policies and practices to prevent unauthorized access to and disclosure of bargaining unit employees' personal information contained in DIS.
As noted above, internal security practices include those policies and actions which are part of the Agency's plan to secure or safeguard the Agency's personnel, physical property, and operations. EPA, 36 FLRA at 625. The Agency's right to determine its internal security practices also includes management's action to prevent improper or unauthorized disclosure of privileged or confidential information. See id. at 639. Proposal 2 concerns the establishment of security measures to safeguard personal information in DIS. As with Proposal 1 above, we find that the establishment of policies and practices management will use to protect personal information contained in DIS is an integral part of the Agency's determination of its internal security practices to safeguard its personnel and property.
Proposal 2 establishes substantive criteria governing the policies and practices that management will follow in order to safeguard personal information contained in DIS. The proposal would require the Agency to establish internal security policies and practices that, at a minimum, will: (1) control access relating to use, modification, destruction or disclosure of personal information contained in DIS; and (2) safeguard personal information contained in automated records, including input and output documents, reports, magnetic tapes, disks, and on-line computer storage, in order to prevent such information from being accessed or disclosed improperly.
Because Proposal 2 establishes substantive criteria governing the policies and practices that management will follow in order to safeguard personal information involving unit employees contained in DIS, we conclude that the proposal directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. See EPA, 36 FLRA at 625-27. We note the Agency's contention that DIS does not contain "personnel records" within the meaning of the OPM regulations cited by the Union. Regardless of whether the personal information contained in DIS constitutes "personnel records" within the meaning of the OPM regulations, the effect of the proposal is to prescribe criteria governing the security of that information. Therefore, based on Department of Education, it is irrelevant for purposes of determining whether the proposal directly interferes with management's right for us to determine whether the proposal in fact requires compliance with OPM regulations.
We next consider the Union's contention that Proposal 2 constitutes a negotiable procedure under section 7106(b)(2). As discussed in Section III.B.3. of this decision, a proposal that directly interferes with a management right does not constitute a negotiable procedure under section 7106(b)(2). Because we have found that Proposal 2 directly interferes with the Agency's right to determine its internal security practices by establishing substantive criteria governing the security measures that management will adopt to safeguard information in DIS, we conclude that Proposal 2 does not constitute a negotiable procedure.
2. Proposal 2 Is an Appropriate Arrangement under Section 7106(b)(3) of the Statute
The Union contends that Proposal 2 constitutes an appropriate arrangement within the meaning of section 7106(b)(3).
The Union asserts that the proposal is intended to protect employees' privacy by ensuring that personal information contained in DIS is protected from access by unauthorized individuals. As we noted previously, this information includes data that is retrievable by an employee's personal identifier and that concerns the employee's retirement date, badge number, duty entry date, and time spent working on projects. Raw data on time spent by an employee on projects may also be extracted from the DIS data base for use in evaluating an employee's performance. The Union asserts that Proposal 2 seeks to assure employees that such private and confidential information will be protected from disclosure to unauthorized individuals who could possibly use such information to an employee's "detriment." Response at 6. We conclude that the proposal is intended to address the adverse effects on employees of disclosure of personal information to unauthorized individuals under the Agency's polices and practices governing access to and protection of information contained in DIS. We find, therefore, that the proposal is an arrangement for employees adversely affected by the exercise of management's right to determine its internal security practices. See Kansas Army National Guard.
We next determine whether Proposal 2 excessively interferes with management's right to determine its internal security practices so as not to constitute an appropriate arrangement. The Agency asserts that its need to determine its internal security practices outweighs the privacy interest of employees. The Agency contends that employees have a limited privacy interest in the information contained in DIS, because this system contains "little personal information," while the Agency has significant interest in determining its internal security practices. Statement at 7.
We find that the proposal does not excessively interfere with the exercise of management's right. Proposal 2 prescribes criteria governing the basic policies and practices that management will establish to control access to personal information in DIS. We note, however, that the proposal does not specify the particular actions that management must take to provide the required safeguards for personal information. In other words, the Agency retains discretion as to the particular measures that it will adopt for that purpose. We also note that the proposed criteria apply only to personal information in DIS. The Agency's policies with respect to other types of information would be unaffected. We conclude, therefore, that the burden imposed by the proposal on management's right to determine its internal security practices is limited.
We find that, on balance, the benefit to employees outweighs the limited burden placed on the Agency by the proposal. We find, for the reasons discussed above in III.B.4. of this decision, that employees have more than a limited privacy interest in the personal information contained in DIS. Further, the proposal would benefit employees by assuring them that safeguards are in place to prevent unauthorized individuals from gaining access to information about them, or for which they are responsible, and improperly releasing or modifying it.
The proposal only requires management to establish a policy and to develop controls that will safeguard the personal information contained in DIS. We note that the Agency asserts that it has a "significant interest" in "preventing unauthorized disclosure[] of information from the [DIS] database, including Privacy Act information." Statement at 3 and 4. The proposal serves to foster the Agency's interest. Also, like Proposal 1, although the proposal would require management to establish controls that will, at a minimum, safeguard the personal information contained in DIS, the proposal allows management discretion as to the particular controls it will prescribe to provide those safeguards.
We conclude, therefore, that Proposal 2 does not excessively interfere with the Agency's right to determine its internal security practices and is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. See EPA, 36 FLRA at 627-29.
Accordingly, we conclude that Proposal 2 is negotiable.
V. Proposal 3
UNION ACCESS TO INFORMATION ON D.I.:
The Union will have access to all information contained on D.I. This will include graphic reports, printouts, etc. which may be requested by the Union in conjunction with grievances, unfair labor practices, classification appeals, etc. The Employer will provide information requested by the Union within 10 calendar days of the request.
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 3 is inconsistent with section 4.1(a) of Executive Order 12356, 47 Fed. Reg. 14874, 15557 (1982), 50 U.S.C. § 401 notes.(1) The Agency states that Executive Order 12356 is a Government-wide regulation that addresses the safeguarding of classified information. The Agency states that the DIS data base contains classified national security information and generates reports containing classified information, including project assignment letters, and product guidelines. The Agency asserts that Proposal 3 is inconsistent with this Executive Order "because it requires the release of classified information to the Union without compliance with the access procedures of [s]ection 4.1(a)." Statement at 11-12. The Agency contends that the proposal requires that the Union "be given access to all information contained on [DIS] irrespective of whether the Union recipients have been granted access to classified information by the Agency head in accordance with [s]ection 4.1(a)." Id. at 12.
Further, the Agency contends that Proposal 3 directly interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency asserts that it has the right to determine internal security procedures for the protection of classified information. The Agency claims that the proposal "totally abrogates [this] right by requiring the Agency to give the Union access to classified information." Id. at 13. Finally, the Agency contends that the proposal is outside the duty to bargain because "it covers information that does not pertain to conditions of employment of unit employees." Id.
2. Union
The Union asserts that Proposal 3 pertains to conditions of employment of unit employees and is within the duty to bargain. The Union contends that the proposal constitutes a negotiable procedure under section 7106(b)(2) of the Statute or, in the alternative, is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
The Union claims that the proposal is intended to provide the Union with a means to obtain information necessary to administer the parties' contract. Noting section 7114(b)(4) of the Statute, the Union contends that relevant and necessary information is needed to investigate grievances, unfair labor practices, and to aid in negotiations. The Union states that it has had "a significant problem with the Agency providing relevant and necessary information [concerning] a large number of [representation] issues." Response at 6. The Union states that the proposal would "ensure[] that the Union will have access to the electronic information contained in [DIS and will] also provide[] a standard [time frame] for management to provide requested information which may be a printout or merely a portion of a program graphic." Petition at 3.
The Union asserts that the proposal is "not" intended to require the release of classified information to "uncleared employees," or to require the Agency to provide the Union with "copies of classified information." Response at 7. The Union notes that "the highest level of information the Union has ever asked for has been [for] official use only." Id. The Union states that, in the event that classified material is "necessary" and "relevant" to an issue before it, "the Union does have employees who have clearances and the review of (not copies of) the material [by those employees] should be sufficient." Id. The Union states that "[a]ll employees at [the] office have the same levels of security as a condition of employment." Id. Accordingly, the Union argues that because the proposal does not require the release of classified information to "uncleared" employees, the proposal does not conflict with Executive Order 12356. Id. Further, for these same reasons, the Union claims that the proposal does not infringe on management's right to determine its internal security practices.
The Union disputes the Agency's contention that the proposal does not concern a condition of employment of unit employees. The Union states that because of its need to "represent employees in grievances that relate to disparate or unfair treatment related to performance appraisals, career progression, retention points in a [reduction-in-force] (related to performance appraisal ratings), performance awards [and] adverse actions[,]" the proposal either directly of indirectly relates to unit employees' conditions of employment. Id. at 8. The Union notes that it has handled employee complaints and grievances that required the Union to obtain copies of production data. According to the Union, this data "normally includes the number of hours on a set of map sheets, the quality ratings and the estimates." Id. at 7.
Finally, the Union asserts that Proposal 3 is an appropriate arrangement for employees adversely affected by the exercise of a management right. The Union asserts that Proposal 3 seeks to prevent the Agency from barring the Union from access to information on DIS. The Union contends that, by precluding the Union from having access to information in DIS, the Agency would "prevent[ ] employees from exercising their rights to file a grievance" because the Union would be unable to "get the information to overturn unjustified management actions." Id. at 8. The Union also claims that it "could not intelligently participate in collective bargaining" without having access to information contained in individual personnel records. Id.
B. Analysis and Conclusions
We find that Proposal 3 is negotiable.
1. Proposal 3 Concerns the Conditions of Employment of Unit Employees
We reject at the outset the Agency's argument that the proposal is nonnegotiable because it covers information that does not pertain to unit employees' conditions of employment. In deciding whether a matter involves a condition of employment of bargaining unit employees, the Authority considers whether: (1) the matters pertain to bargaining unit employees; and (2) the record establishes that there is a direct connection between the matter and the work situation or employment relationship of bargaining unit employees. Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 236-37 (1986) (Antilles).
As there is no allegation that the proposal does not pertain to unit employees, we will consider only the second part of the Antilles test. As worded, the first and second sentences of Proposal 3 concern the Union's access to all information contained in DIS, including, specifically, information that is requested for use in grievances, unfair labor practices, and classification appeals. The Union explains that the intent of the proposal is to provide a means for the Union to obtain information necessary to administer the parties' contract and to represent unit employees in grievances, unfair labor practices, and classification appeals. The Union also explains that it represents employees in matters concerning disparate treatment related to performance appraisals, career progression, and performance awards. According to the Union, the handling of such matters requires it to obtain copies of production data which normally include the number of hours on a set of map sheets, quality ratings, and estimates.
Therefore, we conclude that the Union intends that the proposal will provide it with access to all information in DIS that pertains to its representational activities. Reading the first and second sentences of the proposal together, we find that the Union's interpretation of the proposal is consistent with the wording of the proposal. Consequently, we will adopt that interpretation for purposes of this decision.
Interpreted in this manner, we reject the Agency's claim that the proposal would require it to provide the Union with information contained in DIS without regard to whether that information pertains to the conditions of employment of unit employees. As worded and explained by the Union, the proposal is confined to information that has a direct bearing on matters affecting unit employees' employment relationship. Consequently, we conclude that Proposal 3 concerns matters pertaining to the conditions of employment of unit employees.
2. Proposal 3 Is Not Inconsistent with Executive Order 12356
Under section 4.1(a) of Executive Order 12356, an individual is eligible for access to classified information provided that an agency head or designee has: (1) made a determination of trustworthiness; and (2) determined that access to the information is essential to the accomplishment of lawful and authorized Government purposes.
Proposal 3 requires the Agency to provide the Union with access to all information contained in DIS that pertains to the conditions of employment of unit employees, including "graphic reports, printouts, etc." The Agency contends that DIS "contains classified national security information." Statement at 12. According to the Agency, DIS routinely generates reports and documents containing classified information, including project assignment letters and product preparation guidelines. The Agency asserts that Proposal 3 would require it to release classified information to the Union "irrespective of whether the Union['s] recipients have been granted access to classified information by the Agency head in accordance with [s]ection 4.1(a)" of Executive Order 12356. Id. The Union acknowledges that DIS contains classified information. However, the Union asserts that the proposal is not intended to require the release of such information to "uncleared" employees. Response at 7. The Union contends that in the event that the release of classified material is necessary, there are unit employees with security clearances who could review, but not copy, the material. The Agency does not dispute the Union's statement that employees in the unit have security clearances that cover classified information contained in DIS.
To resolve the negotiability of the proposal, we must determine the effect of the proposal. The Union's response demonstrates that the Union seeks to require the Agency to provide it with copies of information contained in DIS involving unit employees' conditions of employment that it may request, except for classified information which would be available for review only by unit employees with security clearances. Also, sentences two and three of the proposal refer to requested information. Therefore, based on the Union's response and the wording of sentences two and three of the proposal, we interpret the proposal to require the Agency: (1) to provide the Union, on request, with copies of non-classified information pertaining to employees' conditions of employment contained in DIS; and (2) to allow the Union, through unit employees with appropriate security clearances, to review (but not copy or be given copies of) classified information pertaining to employees' conditions of employment contained in DIS. We note that Proposal 3 does not require the Agency to release classified information to Union representatives who do not have appropriate clearances for that classified information. We also note that agencies have exclusive jurisdiction under law to grant or deny security clearances. See Department of the Navy v. Egan, 484 U.S. 518 (1988). We find that nothing in the proposal affects the Agency's ability to grant or deny security clearances and thereby to determine which persons may have access to classified information.
Interpreted in this manner, we find that the proposal is consistent with section 4.1(a) of Executive Order 12356. Under section 4.1(a) of Executive Order 12356, access to classified information is limited to those persons who are "eligible" to have access, that is, persons who have been determined to be "trustworth[y]" and for whom access to classified information "is essential to the accomplishment of lawful and authorized Government purposes." Section 4.1(a) of Executive Order 12356, 50 U.S.C. § 401 notes. An employee who has been granted a security clearance has been determined to be trustworthy to have access to classified information. See 32 C.F.R. § 154.40. Also, the record demonstrates that unit employees' work requires them to have access to classified information. Thus, because the proposal is intended to require the Agency to release classified information only to those employees who the Agency has determined are eligible to access classified information, we conclude that the release of classified information, under the proposal, is limited to those employees who the Agency has determined are trustworthy and for whom access is for a lawful and authorized Government purpose. Consequently, we conclude that Proposal 3 is consistent with section 4.1(a) of Executive Order 12356.
3. Proposal 3 Does Not Directly Interfere with Management's Right to Determine Its Internal Security Practices
We conclude that Proposal 3 does not directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
As we noted above, an agency's right to determine its internal security practices includes, among other things, management's action to prevent improper or unauthorized disclosure of privileged or confidential information or to prevent disruption of the agency's activities. EPA, 36 FLRA at 639. An agency's determination of the conditions under which access to classified information will be granted constitutes the exercise of its right to determine its internal security practices under section 7106(a)(1) of the Statute. Under section 7106(a)(1), therefore, an agency has the right to limit access to classified information.
Proposal 3, as interpreted above, would require the Agency to release requested classified information for purposes of review, but not copying, to only those employees representing the Union who the Agency has determined are eligible to have access to classified information. The proposal would not require the Agency to release classified information to employees whom the Agency has not authorized to have access to such information. Thus, under the proposal, the Agency retains its discretion to determine those persons eligible to have access to classified information.
Because the Agency retains its discretion to determine those persons eligible to have access to classified information and because the proposal would not require the Agency to release classified information to unauthorized persons, we conclude that Proposal 3 does not directly interfere with management's right to determine the conditions under which it will release classified information. Rather, the proposal requires release of that information only to persons authorized by the Agency. Accordingly, we conclude that Proposal 3 does not directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
Because we find that Proposal 3: (1) concerns the conditions of employment of unit employees; (2) is not inconsistent with section 4.1(a) of Executive Order 12356; and (3) does not directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute, we conclude that the proposal is negotiable.
VI. Proposal 4
ELECTRONIC MONITORING:
The D.I. System will not be used to electronically monitor employees production, on any time frame, i.e. the Employer will not be able to routinely monitor employee production on a daily basis. The Employer may be able to obtain a status report to monitor the production process.
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 4 directly interferes with the Agency's rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees and to assign work. The Agency asserts that the proposal "absolutely prohibits" management from using DIS to evaluate employees' performance because it prohibits the monitoring of employees' production over any time frame. Statement at 15. Relying on Authority precedent, the Agency argues that proposals which "prohibit an agency from using information gathered by means of a particular evaluation method or technique, or which limit management's ability to collect data for purposes of performance evaluation, directly interfere with management's rights to direct employees and assign work." Id. at 14 (footnote omitted). The Agency further contends that the proposal interferes with its right to assign work to supervisors. The Agency states that by precluding the use of DIS to monitor employees' production, the proposal would force management to assign additional supervisors to the task of monitoring production.
The Agency further contends that the proposal interferes with its right to determine the technology, methods and means of performing work under section 7106(b)(1) of the Statute. The Agency claims that the monitoring of employees' work production "is directly related and essential to the accomplishment of the Agency's work." Id. at 15. The Agency argues that by prohibiting the use of DIS to monitor employees's work production, the proposal interferes with that right.
The Agency claims that the proposal is not an appropriate arrangement because the Union has not clearly established that it was intended as an arrangement. However, the Agency contends that if the Authority finds that the proposal is an arrangement, it is not an appropriate arrangement because it excessively interferes with the management rights previously mentioned. The Agency asserts that "employees have no recognizable interest in [the Agency] not using [DIS] to monitor [their] production." Id. at 16. According to the Agency, in comparison with employees' interest, "the Agency has significant interests in using [DIS] to monitor employee production." Id. The Agency states that DIS provides an automated, efficient method of monitoring employee production. The Agency asserts that the system allows the Agency to monitor all aspects of employee production on one automated system, rather than maintaining a separate system and data base to monitor employee production.
2. Union
The Union contends that Proposal 4 is a negotiable procedure under section 7106(b)(2) of the Statute or, alternatively, constitutes a negotiable appropriate arrangement under section 7106(b)(3).
The Union states that Proposal 4 is intended "to lock in the present practice of no electronic monitoring of [DIS]." Response at 9. The Union asserts that the proposal does not seek to address the utilization of DIS to assist in performance matters, but rather is concerned with the use of electronic monitoring to take disciplinary actions. The Union notes another system used by the Agency, the Feature Extraction System, which is not currently connected to DIS, and contends that this system "potentially has the ability to conduct monitoring." Id. The Union also points out that currently the Agency does not use electronic monitoring to calculate the ratings of employees.
The Union contends that the proposal is not intended to prohibit Agency action, "but to significantly discourage it[] to ensure relief to employee[s] and to compel the Agency to bargain" if electronic monitoring is used in the future. Id. The Union asserts that given the wording of the proposal, the Agency could not implement electronic monitoring without committing an unfair labor practice or a contract violation. The Union claims that because DIS is not currently used and has not been used by the Agency for electronic monitoring, or for performance appraisal purposes, the proposal cannot be found to infringe on management's rights to direct employees and to assign work to employees or supervisors.
The Union asserts that the proposal does not directly interfere with the Agency's right to determine the technology, methods, and means of performing work because the proposal has no impact on Agency technology.
In the alternative, the Union asserts that Proposal 4 is an appropriate arrangement because it would prevent employees from being subjected to constant monitoring. The Union claims that constant monitoring would lead to lower production rates and employees being subjected to discipline for not producing at a higher rate. The Union states that affected unit employees are held to certain quality and quantity standards that are "in the forefront of new technology that has consistently resulted in more [and] more complex mapping assignments requiring more technical specifications, concentration and mental strain to compile an acceptable job." Id. at 10. The Union states that "[i]t is normal for employees to occasionally take a short break from compiling on the[ir] workstation[s] to let their mental facilities rest." Id. The Union asserts that "electronic monitoring [would] requir[e] a high level of mental stress on a continuous basis (prohibiting any short breaks) [which] would lead to adverse physical/mental/health problems [for] employees [being monitored]." Id.
B. Analysis and Conclusions
We find that Proposal 4 directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. We also find that Proposal 4 does not constitute a negotiable procedure under section 7106(b)(2) of the Statute or a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
Proposal 4 would prohibit the Agency from using DIS to "electronically monitor employees['] production, on any time frame." The Agency contends that DIS allows it to monitor all aspects of employee production on one automated system. The Union asserts that this system is not currently used by the Agency for electronic monitoring or for performance appraisal purposes. According to the Union, the proposal is not intended to prohibit such use but to "significantly discourage" the use of DIS to monitor employees' production in order to ensure relief to employees and to compel the Agency to bargain if electronic monitoring is used in the future. Response at 9. The Union also asserts that given the wording of Proposal 4, the Agency could not implement electronic monitoring in the future without committing an unfair labor practice or a contract violation. Based on the wording of Proposal 4, we find that the proposal would not, as the Union claims, merely discourage the Agency from using DIS to monitor employees' production. As worded, the proposal would preclude management from using DIS to monitor employees' work performance.
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 under section 7106(a)(2)(A) and (B) of the Statute. See Social Security Administration, 38 FLRA at 248 (provision which precluded management from using unannounced desk reviews to monitor employees' work performance directly interfered with management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute); Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 744-46 (1987) (Proposal 6) (OEA, Inc.), affirmed in relevant part sub nom. Overseas Education Association, Inc. v. FLRA, 872 F.2d 1032 (D.C. Cir. 1988) (portion of Proposal 6 which prohibited the agency from using various techniques to evaluate employees' performance was held nonnegotiable).
Because Proposal 4 would preclude management from using a particular method of monitoring employees' work performance, namely, DIS, we find, consistent with Social Security Administration and OEA, Inc., that the proposal directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. In so concluding, we reject the Union's statement that Proposal 4 cannot be found to infringe on management's rights to direct employees and to assign work because DIS is not currently being used for electronic monitoring or for performance appraisal purposes. Regardless of whether DIS is currently being used for these purposes, the proposal imposes a substantive limitation on management's right to determine the method it deems most appropriate to conduct employee work performance evaluations and, therefore, directly interferes with the Agency's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.
Moreover, because Proposal 4 directly interferes with management's rights under section 7106(a)(2)(A) and (B) of the Statute, we also conclude that it does not constitute a negotiable procedure under section 7106(b)(2) of the Statute.
The Union claims that Proposal 4 is intended as an arrangement to address the adverse affects on employees of the Agency's use of DIS to monitor their work performance. Applying the analytical framework set forth in Kansas Army National Guard, we find that a reasonably foreseeable consequence of the use of DIS to monitor employees' work performance is that such monitoring could disclose information that would reflect adversely on an employee's work performance. Proposal 4 mitigates against that possibility by prohibiting the Agency from using this method of monitoring employees' work performance. The Union further asserts that prohibiting electronic monitoring or the use of DIS would alleviate employees' mental stress and other health problems that could result from employees being constantly monitored. We find that it is reasonably foreseeable that employees may be adversely affected by the Agency's use of DIS to monitor employees' work performance and that Proposal 4 is designed to ameliorate those adverse affects. Consequently, we conclude that Proposal 4 is an arrangement for employees adversely affected by the exercise of management's rights within the meaning of section 7106(b)(3) of the Statute.
Having concluded that Proposal 4 is an arrangement, we now consider whether it is appropriate within the meaning of section 7106(b)(3) of the Statute. We find that the burden placed on the Agency by Proposal 4 is significant. While Proposal 4 is intended to benefit employees by preventing information adverse to an employee's work performance from being obtained through the use of DIS as a monitoring technique and to alleviate employee stress that could result from being monitored by this technique, the proposal would impose an absolute prohibition against the use of DIS to monitor employee work performance.
We find that, on balance, the burden placed by Proposal 4 on management's ability to obtain information about employees' work performance through the use of DIS as a monitoring method outweighs the benefits afforded employees by this proposal. We find, therefore, that Proposal 4 excessively interferes with management's rights under section 7106(A)(2) and (B) of the Statute. Consequently, we conclude that Proposal 4 is not an appropriate arrangement for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3) and that it is nonnegotiable. Further, because Proposal 4 directly and excessively interferes with management's rights under section 7106(a)(2)(A) and (B) of the Statute, we find it unnecessary to address the Agency's contention that the proposal interferes with other management rights.
VII. Proposal 5
D.I./TECHNOLOGY COMMITTEE:
[1] A joint labor management committee consisting of three Union and three management positions will be created. [2] The Union will designate three fully participating bargaining unit employees to the committee. [3] The Union will designate one unit employee to be the chairman of the labor side of the committee. [4] If the Employer chooses to put unit employees on the management side of the committee, the Union will have to approve such actions. [5] If the Union does not approve such actions, the Employer will either forfeit one position on the committee, or fill it with a non[-]unit employee.
The committee[']s purpose will be to monitor and make recommendations to the Director of the Louisville office on all matters related to D.I. In making recommendations the committee will vote on issues by secret ballot and make recommendations in writing. A simple majority will decide any issue.
Either the labor or management side may change or substitute members on the committee prior to any meeting.
[1] The recommendation of the committee will be in writing. [2] The Director of the Louisville office will respond in writing to the recommendation within 30 calendar days of recei[p]t. [3] The response will give objective job related reasons for not following committee recommendations.
[The sentences of the first and fourth paragraphs have been numbered for the convenience of the reader.]
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 5 directly interferes with its right to determine the technology, methods, and means of performing work under section 7106(b)(1) of the Statute. The Agency states that the committee required under the proposal is intended as "a forum to discuss new technologies for performing work which may be implemented in the Agency in the future." Statement at 17. Noting the Union's statement of intent contained in the petition, the Agency asserts that Proposal 5 "seeks Union participation in the Agency's deliberative process concerning the determination of the technology, methods, and means of performing its work." Id. at 18. The Agency points out that it has elected not to negotiate with the Union concerning the technology, methods, and means of performing work.
The Agency also contends that the proposal directly interferes with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency notes that the Authority has held that "where a committee is an integral part of the process by which the means of performing work [is] determined, the tasks associated with carrying out the functions of the committee concern the assignment of work." Id. (footnote omitted). The Agency states that Proposal 5 will allow the Union to appoint three members to the committee and to veto the Agency's appointment of any bargaining unit member to the committee. The Agency asserts that Proposal 5 interferes with management's rights to direct employees and to assign work because it would "create a committee which will deliberate on the technology, methods, and means of performing work at the Agency in the future." Id. at 19. Therefore, the Agency concludes, the portion of the proposal which provides for the Union's appointment of members to the committee and the Union's veto of certain Agency committee appointments is nonnegotiable.
The Agency asserts that the proposal is not an appropriate arrangement because "it would involve the Union in impact negotiations before the Agency actually decides to adopt a new technology, method, or means of performing work." Id. The Agency contends that the proposal "would involve the Union in all changes, not just those having an adverse effect [sic] on employees." Id. Further, the Agency claims that "the chilling effect on the Agency's right to deliberate caused by the Union's presence on the committee might outweigh any other [speculative] benefits to unit employees gained by Union committee membership." Id. at 19-20. The Agency argues that because the proposal would "totally abrogate the Agency's ability to assign work to and direct committee members while the committee is in session[,]" it excessively interferes with management's right to direct employees and to assign work and, therefore, does not constitute an appropriate arrangement. Id. at 20.
2. Union
The Union contends that Proposal 5 is a negotiable procedure under section 7106(b)(2) of the Statute and, if not, the proposal constitutes a negotiable appropriate arrangement for employees adversely affected by the exercise of management's rights.
The Union disputes the Agency's contention that the proposed joint committee is intended to be involved in management's deliberative process. The Union claims that the "major purpose of the committee would be communication of information from management to the [U]nion concerning technology." Response at 10. According to the Union, the proposal "is not [intended] to have any internal management deliberations transpiring during the committee['s] actions." Id. The Union states that the "committee would only make recommendations to the Director . . . who would be required to respond in writing and give objective job related reasons for not following the recommendations." Id. Accordingly, the Union asserts that because the proposal does not involve participation in management's deliberative process, it does not interfere with management's right to determine the technology, methods, and means of performing work.
The Union contends that the proposal is not intended to dictate that three members represent each party, but to suggest that representation be fair. The Union asserts that, in its view, "three" would be the "optimum number." Id. at 11. The Union further contends that "only management officials, supervisory employees or other non-unit employees should be on [management's] side," and that "to do otherwise would . . . result in a conflict of interest." Id. The Union states also that members of the committee would be volunteers. The Union argues that because the proposal does not: (1) absolutely require three committee members; (2) involve internal management deliberations; and (3) affect the substance of the technology for performing work, it does not directly interfere with management's rights to direct employees and to assign work.
The Union argues that the proposal is intended to address the adverse effects of changes in the workplace. The Union asserts that, currently, when new technology is implemented, employees' concerns are bypassed. The Union states that, "with the implementation of new technology, changes in the duties of employees, new job positions[,] and higher graded positions have resulted." Id. at 12. The Union claims that the proposal would provide a committee that would communicate information to employees and management as well as make recommendations to management concerning improvements related to employees' concerns.
B. Analysis and Conclusions
For the following reasons, we find that Proposal 5 is negotiable.
1. Joint Labor-Management Committee
a. Management's Right to Determine the Technology Methods and Means of Performing Work under Section 7106(b)(1) of the Statute
The Agency contends that Proposal 5 directly interferes with its right to determine the technology, methods, and means of performing work under section 7106(b)(1) of the Statute because the proposal would require Union participation in management's decisions as to the technology, methods, and means of performing its work. We disagree.
Proposals which provide for joint labor-management committees whose purpose is to make recommendations concerning conditions of employment have been found to be negotiable. See, for example, National Treasury Employees Union and Nuclear Regulatory Commission, 31 FLRA 566, 575 (1988) (Nuclear Regulatory Commission), reversed in part and enforced in part as to other matters sub nom. U.S. Nuclear Regulatory Commission v. FLRA, 895 F.2d 152 (4th Cir. 1990) (proposal establishing advisory committee to make recommendations as to the legality of performance elements and standards found negotiable); American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 17 FLRA 674, 676-77 (1985) (Department of Labor), remanded as to other matters sub nom. Local 12, American Federation of Government Employees v. FLRA, No. 85-1371 (D.C. Cir. Feb. 11. 1986) (proposal establishing a joint labor-management committee to discuss the use of quality circles to serve as a forum for evaluating employee concerns about the introduction of new technology found negotiable); American Federation of Government Employees, AFL-CIO, Local 2761 and U.S. Department of the Army, U.S. Army Adjutant General Publication Center, St. Louis, Missouri, 14 FLRA 438 (1984) (U.S. Army Adjutant General Publication Center) (proposal to create a joint labor-management committee to serve as a forum for evaluating employee training needs and for formulating programs to meet those needs without obligating the agency to bargain on the specific content of training found negotiable).
On the other hand, proposals seeking union participation on committees utilized by management as an integral part of its deliberative process under section 7106 of the Statute are nonnegotiable. See, for example, National Federation of Federal Employees, Local 1437 and United States Army Armament, Research Development and Engineering Center, Picatinny Arsenal, New Jersey, 35 FLRA 1052 (1990) (Proposal 3) (proposal providing for union representation on agency's invention evaluation committee found nonnegotiable because it would have interjected the union into the deliberative process by which the agency exercised its right to determine the methods and means of performing its work). The Authority has consistently held that management's rights under section 7106 include more than just the right to take final actions. The rights contained in section 7106 of the Statute encompass actions integral to the exercise of those rights, including discussion of and deliberation on the factors bearing upon the final decisions. American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187, 212 (1991) (United States Merchant Marine Academy). Union presence, whether active or passive, at such discussions and deliberations interferes with an agency's right to engage freely in internal discussions and deliberations prior to deciding to take actions within the scope of section 7106. Id.
Based on the wording of the proposal and the evidence in the record, the committee would be created by the parties' agreement as a forum for the exchange of information between the Union and management concerning changes related to employees' conditions of employment, in particular, technological changes related to the use of DIS. The proposal would not enable the Union to participate in the deliberative process leading to the exercise of management's rights under section 7106 of the Statute. The authority of the proposed committee is expressly limited to making recommendations to the Director concerning DIS.
The committee involved in Proposal 5 is, therefore, like the committees involved in Nuclear Regulatory Commission, Department of Labor and U.S. Army Adjutant General Publication Center, whose purposes were limited to making recommendations concerning unit employees' conditions of employment. Because Proposal 5 would not interject the Union into the deliberative process by which management determines its technology, methods, and means of performing work, we conclude that the proposal does not directly interfere with management's rights under section 7106(b)(1).
b. Management's Rights to Direct Employees and to Assign Work under Section 7106(a)(2)(A) and (B) of the Statute
The Agency asserts that, because Proposal 5 would interject a committee into the Agency's deliberative process concerning the technology, methods, and means of performing Agency work, the portion of the first paragraph of the proposal providing for Union appointment of committee members directly interferes with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute.
We reject the Agency's assertion that Proposal 5, insofar as it concerns the appointment of union representatives on the committee, directly interferes with management's rights to direct employees and assign work. We have held that where participation on a committee does not involve official, prescribed duties of employees, membership on the committee does not concern the assignment of work within the meaning of section 7106(a)(2)(B) of the Statute. See National Federation of Federal Employees, Local 541 and Veterans Administration Hospital, Long Beach, California, 12 FLRA 270, 274 (1983) (Veterans Administration Hospital). Because the committee involved in Proposal 5 is not an integral part of the Agency's decision-making process concerning the technology, methods, and means of performing its work and because participation on the committee does not involve the official prescribed duties of employees representing the Union on the committee, we conclude that sentences one, two and three of the first paragraph of the proposal do not directly interfere with the Agency's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. Accordingly, we conclude that sentences one, two and three of the first paragraph of Proposal 5 are negotiable.
2. Union's Right to Approve Management's Choice of Unit Employees to Serve as Management's Representatives on the Committee
We find that sentences four and five of the first paragraph of Proposal 5, which provide that the Union must approve management's choice of unit employees to serve as its representatives on the joint labor-management committee, directly interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. However, these sentences constitute negotiable appropriate arrangements under section 7106(b)(3) of the Statute.
a. Conditions of Employment
We find that this case is distinguishable from the Authority's decision in Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 21 FLRA 580, 586-587 (1986) (Patent and Trademark Office). In Patent and Trademark Office, the Authority held, among other things, that the designation of a management official to fulfill an agency's statutory responsibility was not a matter directly related to the conditions of employment of unit employees. In this case, unlike the proposal in Patent and Trademark Office, sentences four and five of the first paragraph of Proposal 5 address management's appointment of unit employees to represent management's interest on the committee. Because these sentences concern the assignment of work to unit employees during duty hours, we find that the sentences have a direct connection with the working conditions of unit employees. See Antilles, 22 FLRA at 236-37. Therefore, we conclude that sentences four and five of the first paragraph of Proposal 5 pertain to matters affecting the conditions of employment of unit employees.
b. Management's Right to Assign Work under Section 7106(a)(2)(B) of the Statute
We find that sentences four and five of the first paragraph of Proposal 5 directly interfere with management's right to assign work to employees. In National Federation of Federal Employees, Local 1452 and U.S. Department of the Navy, Naval Training Center, Orlando, Florida, 43 FLRA 54 (1991) (Naval Training Center), petition for review filed sub nom. National Federation of Federal Employees, Local 1452 v. FLRA, No. 91-1624 (D.C. Cir. Dec. 19, 1991), we stated that "the right to assign work encompasses the right to assign duties that are additional or incidental to employees' positions." Id. at 60. We further stated that proposals prohibiting an agency from making such assignments directly interfere with the right to assign work. We found, therefore, that the proposal involved in Naval Training Center, which prohibited the agency from coercing or requiring employees to perform duties in connection with charitable drives, directly interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute.
In this case, sentences four and five of the first paragraph of Proposal 5 provide that the Union must approve management's choice of unit employees to serve as management representatives on the joint labor-management committee. We note at the outset that the duties of unit employees as Union representatives on that committee are not the work of the Agency. See U.S. Army Adjutant General Publication Center, 14 FLRA at 440; Veterans Administration Hospital, 12 FLRA at 274. The duties of unit employees as Union representatives involve the responsibility of unit employees to the Union and management has no role in determining which unit employees will be assigned those duties. In contrast, the additional duties associated with representing management on the joint labor-management committee do constitute the work of the Agency. Consequently, when the Agency assigns unit employees to serve as management representatives on the committee, the assignment of those additional duties constitutes an assignment of work within the meaning of section 7106(a)(2)(B) of the Statute. See, for example, Naval Training Center. Thus, management has the right, under section 7106(a)(2)(B) of the Statute, to designate unit employees to represent management on the committee.
Sentences four and five of the first paragraph of Proposal 5 provide that the Union must approve management's assignment to unit employees of the additional duty of representing management on the committee. The Union states that only management officials, supervisory employees, or other nonunit employees should represent management on the committee and that to do otherwise would result in conflicts of interest. Pursuant to sentences four and five of the first paragraph of Proposal 5, the Union could, if it chose, disapprove management's choice of a unit employee if the Union determines that a conflict of interest exists, and, thus, prevent management from requiring a unit employee to perform in this capacity. Because sentences four and five of the first paragraph of Proposal 5 would permit the Union to prevent the Agency from appointing unit employees as its representatives on the committee if the Union determines that a conflict of interest exists, we conclude that the sentences directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. Compare International Federation of Professional and Technical Engineers and U.S. Department of the Interior, Bureau of Reclamation, Denver Office, Denver, Colorado, 43 FLRA 998 (1992) (proposal requiring that the union be allowed to appoint all unit employees to an advisory committee established by the agency to monitor the operation of a fitness center and to make recommendations to management directly interfered with management's right to assign work because the proposal would not allow management to consider operational needs in assigning employees designated by the union).
Also, because sentences four and five of the first paragraph of Proposal 5 directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute, we conclude that these sentences do not constitute negotiable procedures under section 7106(b)(2) of the Statute.
c. Appropriate Arrangements
We next consider whether these sentences constitute appropriate arrangements under section 7106(b)(3) of the Statute. Applying the analytical framework set forth in Kansas Army National Guard, we conclude that sentences four and five of the first paragraph of Proposal 5 constitute appropriate arrangements within the meaning of section 7106(b)(3).
The Union contends that these sentences are intended to prevent conflicts of interest from arising as a result of unit employees serving as management representatives on a joint labor-management committee created to enhance communication between management and the Union on technological matters that adversely affect unit employees. It is reasonably foreseeable that management's interests in these matters may differ from those of unit employees. By providing the Union the right to disapprove management's choice of unit employees to represent management on the committee, the proposal would benefit unit employees by preventing conflicts of interest that may result from such employees serving as management representatives on the committee. We find, therefore, that sentences four and five of the first paragraph of Proposal 5 are intended as an arrangement for employees adversely affected by management's exercise of its right to assign work under section 7106(a)(2)(B) of the Statute.
As to whether these sentences constitute an appropriate arrangement, we note that the sentences are designed to prevent conflicts of interest that may result from unit employees serving as management representatives on the committee. We also note the Union's contention that "only management officials, supervisory employees or other non-unit employees should be on [management's] side." Response at 11. Thus, by providing the Union the right to disapprove management's choice of unit employees as management representatives on the committee, sentences four and five of the first paragraph of Proposal 5 would, in effect, enable the Union to prevent any conflicts of interest that would result from a unit employee serving as a management representative on the committee.
Although these sentences impose a burden on management's right to require unit employees to perform this additional duty, the Union's veto power over management's choice of its representatives affects only unit employees and not other personnel. Management's ability to choose other personnel, such as management officials, supervisory employees, or other nonunit employees, to represent its interests on the committee would be unaffected by sentences four and five of the first paragraph of Proposal 5. Also, management could choose unit employees, so long as the Union did not disapprove such choice for conflict of interest reasons. Thus, although these sentences would impose some burden on management's exercise of its right to assign work, the sentences would offer a significant benefit to unit employees by preventing conflicts of interest that would result from such employees serving as management representatives on the committee.
Further, we find that sentences four and five of the first paragraph of Proposal 5 are distinguishable from the proposal at issue in Naval Training Center. In Naval Training Center, we found that, by absolutely precluding management from assigning CFC duties to unit employees, the proposal excessively interfered with management's right to assign work because the burden on management of being precluded from assigning those duties outweighed the benefit to employees of not being required to perform them. In this case, we find that a different balance must be struck because the benefits afforded employees by sentences four and five, and the burden imposed on management by those sentences, are of a different nature and magnitude.
Specifically, we find that the Union's ability to disapprove the assignment of a unit employee as a management representative in order to prevent a conflict of interest is a more significant benefit to employees than being relieved of CFC duties. Sentences four and five afford unit employees protection against situations that could place those employees in conflict with the interests of other unit employees and in representing management policies that might not necessarily reflect their interests as members of the unit. In our view, this is clearly a greater benefit to employees than not being required to assume the additional duties that were the subject of Naval Training Center.
Moreover, unlike the proposal in Naval Training Center, sentences four and five do not absolutely preclude management from exercising its right to assign work. Under sentences four and five, management's choice of a unit employee as a management representative is limited only where the Union disapproves for conflict of interest reasons.
As the court noted in American Federation of Government Employees, Local 2782 v. FLRA, 702 F.2d 1183, 1188 (D.C. Cir. 1983), determination of whether a proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute depends on balancing "the competing practical needs of [F]ederal managers and union representatives." The record is devoid of evidence as to the management needs that would be served by designating a unit employee as a management representative. It is clear, however, that employees have a significant interest in not being placed in situations that may present a conflict of interest between unit employees who are serving as management representatives and other unit employees.
Because we find that, in the circumstances of this case, the benefit to employees afforded by sentences four and five outweighs the burden on management's right to assign unit employees as management representatives on the committee, we conclude that, unlike the proposal in Naval Training Center, sentences four and five do not excessively interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. Accordingly, we conclude that sentences four and five constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute and are negotiable.
3. Director Required to Respond to the Committee's Recommendations
We note that the Agency does not contend that the second sentence of the fourth paragraph of Proposal 5 is nonnegotiable because the proposal assigns the task of responding to the committee's recommendations to the "Director of the Louisville office." However, this sentence clearly requires the Director of the Office to respond to the recommendations. The Authority has held that the designation of a particular management official to perform specified tasks directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, Bremerton Metal Trades Council and Navy Supply Center Puget Sound, 32 FLRA 643, 651-52 (1988) (Navy Supply Center Puget Sound). To the extent that the second sentence of the fourth paragraph of Proposal 5 designates the Director as the management official to respond to the committee's recommendation, the proposal directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute.
However, applying the analytical framework set forth in Kansas Army National Guard, to the extent that this sentence designates the Director as the official to respond to the committee's recommendations, we conclude that the sentence constitutes an appropriate arrangement.
The Union contends that Proposal 5 is intended to address the adverse effects of the introduction of new technology in the work place. We conclude that the designation of the Director to respond to the committee's recommendations constitutes an arrangement for employees adversely affected by management's exercise of its right to determine the technology of performing work. By requiring the Director to address the committee's recommendations, the second sentence of the fourth paragraph of Proposal 5 would benefit employees by giving them an opportunity to submit recommendations concerning technological matters that adversely affect their work situation to the individual in charge of the office. This would ensure employees that the Director is aware of technological matters that adversely affect them and, also, would provide them with a means of obtaining feedback as to how management plans to address those matters.
On the other hand, by requiring the Director to respond to the recommendations, the proposal would preclude the Agency from assigning responsibility for this task to other management officials. The proposal, however, would not preclude Agency personnel from assisting the Director in preparing the required response. Although the proposal imposes some burden on management's right to assign work, we conclude that the benefit afforded employees by the requirement that the Director respond to the committee's recommendations outweighs the burden imposed on the Agency by the requirement that the Director undertake this responsibility. Consequently, we conclude that the second sentence of the fourth paragraph of Proposal 5, to the extent that it requires the Director to respond to the recommendations, does not excessively interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. We conclude, therefore, that in this respect, the second sentence of the fourth paragraph of Proposal 5 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.
Accordingly, we find that Proposal 5 is negotiable.
VIII. Order
The Agency must negotiate on request, or as otherwise agreed to by the parties, concerning Proposals 1, 2, 3 and 5.(2) We dismiss the petition for review as to Proposal 4.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. Section 4.1(a) of Executive Order 12356 provides:
PART 4--SAFEGUARDING
Sec. 4.1 General Restrictions on Access
(a) A person is eligible for access to classified information provided that a determination of trustworthiness has been made by agency heads or designated officials and provided that such access is essential to the accomplishment of lawful and authorized Government purposes.
2. In finding that these proposals are negotiable, we make no judgment as to their merits.