National Treasury Employees Union (Union) and United States, Department of the Treasury, United States Customs Service (Agency)

[ v59 p749 ]

59 FLRA No. 135






March 12, 2004

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n2] 

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of a single proposal pertaining to storage of Agency-authorized firearms while employees are off-duty.

      For the reasons set forth below, we find that the proposal is outside the duty to bargain and dismiss the petition for review.

II.     Proposal

Customs will ensure that either a lockbox or other secure and locked container such as a safe, file cabinet, or desk is available at all government offices where armed employees work or are assigned. Routine overnight storage of a firearm in a government office is permitted.

III.      Background

      At the time this petition was filed, the United States Customs Service (Customs or the Agency) was a component of the United States Department of the Treasury. As such, it was subject to various Treasury Department internal regulations, including Treasury's policies regarding the use and storage of firearms in connection with assigned work performed by Customs employees who carry firearms as a condition of their employment. It is not disputed that the National Treasury Employees Union (NTEU or the Union) bargaining unit employees here were subject to both Treasury Department and Customs Service policies regarding firearms use and storage. Although the parties' various submissions in these proceedings set forth seemingly conflicting positions as to what the history of firearms storage is or has been, certain facts are not in dispute.

      These employees have been carrying firearms as part of their duties for many years. Customs has employees carrying firearms at approximately 300 locations and in a limited number of locations, it permits employees to store authorized firearms at the work site during off-duty hours when the security risk in doing so is found acceptable by the Agency. Agency Reply (Reply) at 2. In that regard, the Union notes "the fact remains that, aside from allowing overnight storage in the 1980s and 1990s when secure facilities were available, many Customs locations currently allow for such overnight storage." Union Response to Agency Statement of Position (Response) at 4. Approximately ten locations were identified by the Union as currently permitting the storage of authorized firearms at work during off-duty time. Id. Thus, in the great majority of locations, employees carry their firearm between work and home and either store it at home under secure conditions with an agency provided safety lock or carry it under a 24-hour carry policy.

      An employee's storage or carriage of his or her authorized firearm outside of duty hours has been the subject of agency regulation for some time, with the parties providing examples of such regulation dating back to 1986. A Customs Service Directive dated February 10, 1986, entitled "Firearms Policy," is Union Exhibit 2 to the Response. Page 5 of that document reflected guidance for both employees who stored their authorized firearm at the work site and those who carried their authorized firearm home for secure storage.

      In 1991 the parties negotiated a memorandum of understanding regarding the implementation of a Customs Service directive on firearms policy. Union Exhibit 3 to the Response. Page 3 of that Exhibit noted [ v59 p750 ] that employees may "carry their firearms home or leave them at the work site in a secure locker." In 1996, the Agency issued a "Firearms and Use of Force Handbook." Attachment 1 to Agency Statement of Position (SOP). This document does not provide for storage of firearms at the work site but does discuss storage of firearms at other locations (pages 6-7). The document states that "Employees are expected to exercise good judgement in providing adequate security to all Service-issued and Service-authorized, personally-owned firearms". Id. It was also in approximately 1996 that the Agency began providing safety lock devices for every authorized firearm, including those retained by the employee when off-duty. Reply at 2.

      Attachment 3 to the SOP is the Agency's March 2000 memorandum regarding "24-Hour Carry of Firearms by Office of Field Operations Personnel." The 24-hour carry policy applies to those who are qualified to use service-issued firearms and is voluntary. Of note is the following paragraph from the first page of this document.

This authority presents a tremendous responsibility and has potential for significant liabilities to the individual officer, as well as the Customs Service. Any officer who elects to carry a service-issued firearm off-duty must realize that his or her behavior must be significantly modified while armed. There are major restrictions in behavior and limitations on mobility, as the weapon must remain under the officer's control at all times.


      The document goes on to discuss these restrictions and limitations. The document notes that the firearms may be used in only two situations (self-defense and aiding another law enforcement officer) and discusses the limitations on the use of deadly force and that using a firearm is not required for every violent situation confronted. Officers are not permitted to consume alcoholic beverages while carrying a firearm under the 24-hour carry policy and may not leave a firearm unattended or unsecured, or give the firearm to another individual to hold for the officer. Officers are also not permitted to use their firearms for the sole purpose of disabling a moving vehicle or vessel, and may not fire warning shots. Officers not in uniform must also keep their firearm concealed when carrying the firearm under the 24-hour carry policy. No other restrictions on behavior or limitations on movement are set out in the document. As a result, employees under the 24-hour carry policy are not required to travel directly between home and work while carrying their authorized firearm.

      Under current Treasury Department and Customs Service policy there is no provision concerning storage of authorized firearms at Government offices while employees are off-duty. However, a new Treasury Department Memorandum giving rise to this proposal provides that employees "authorized to carry firearms in the performance of their official duties are personally responsible for the security of all firearms to prevent unauthorized use, unintentional discharge, and theft." Department of Treasury Memorandum dated December 28, 2000, entitled "Implementation of Treasury Firearms Safety and Security Policy," at 1-2, Attachment to Union's Petition for Review (Treasury Policy). The Treasury Policy also contains requirements governing security and storage of firearms when employees are in Government offices, in their personal residences, using a vehicle, and when the firearms are not under their immediate control. [n3] 

IV.     Positions of the Parties

A.     Agency

      The Agency contends that the proposal concerns a matter affecting management's right to determine its internal security practices under § 7106(a)(1) of the Statute. SOP at 3. Specifically, the Agency notes that employees covered by the proposal are authorized to carry firearms in order to complete the Agency's mission of enforcing the customs laws of the United States. The Agency states that the new firearms policy contains no provision for storage of an employee's authorized firearm during off-duty hours because it has determined that the Agency operates more efficiently, effectively and with greater security when the individual employee authorized to carry a firearm is personally responsible for the firearm's security during off-duty hours. The Agency contends that in situations where no individual is personally responsible for the firearm, the risk of theft or misuse is increased. The Agency maintains that its paramount concern in establishing a policy of personal responsibility is "employee safety, property protection, [and] public safety . . . ." Id. at 5.

      The Agency contends that because the proposal directly interferes with management's right to determine its internal security practices, the proposal does not constitute a procedure within the meaning of § 7106(b)(2) of the Statute. In that regard, the Agency argues, inter alia, [ v59 p751 ] that the proposal would prevent employees from being able to report to work outside normal duty hours and at locations other than their normal duty station because the employees would have to first retrieve their firearm from another location, and that this would also restrict the Agency's ability to assign overtime work. Id. at 6.

      The Agency also argues that the proposal does not constitute an appropriate arrangement under § 7106(b)(3)of the Statute because it would prevent it from acting at all with regard to determining this aspect of its internal security practices. The Agency acknowledges that the proposal would act as an arrangement to mitigate the adverse effects from the exercise of its rights that the Union believes will result from this action. However, because of other preventive measures already in place and the impact of personal choice that employees can exercise regarding the carriage of firearms, the Agency disputes that the Union has shown that these adverse effects will result from the Agency's decision to have employees be responsible for the security of their authorized firearms during non-duty hours. Id. In that regard, the Agency points out that it has provided employees with safety gun lock devices for all authorized firearms since approximately 1996. Reply at 2. The Agency asserts the policy of in-home storage is longstanding yet the Union's concerns over bringing firearms into employee homes is "completely unsupported" with the Union attempting to rely on generalized statements rather than any demonstrated adverse effect. SOP at 7. As for the alleged impact from limitations on movement and activities from having to carry firearms, the Agency contends that these adverse effects derive from employee choices that preclude them from the benefits available under the Agency's 24-hour carry policy. The Agency asserts that the 24-hour carry policy would provide employees with the ability to engage in the types of activities and movement that the Union points to as elements of the adverse effects upon employees. Id. at 1. The Agency further notes that only approximately 500 of the 8000 employees authorized to carry a firearm elect to carry an Agency authorized personally-owned firearm. Id.

      The Agency also cites the increased risk the proposal would impose upon its internal security because storing firearms at the work site during off-duty hours increases the risk of theft, thereby threatening the security of Agency property and personnel. In particular, the Agency states that it operates over 300 facilities at different locations and that those facilities differ in the level of staffing and Agency control. The Agency points out that many of the facilities are not secure enough to protect firearms stored there during off-duty hours because they are not staffed during those hours. The Agency also states that some of its facilities are controlled by other Government agencies and shared with private sector businesses. The Agency asserts that even when it has control of a facility, the facility may not have sufficient physical security to provide adequate and safe storage of firearms. The Agency also points out that the high risk of theft presented by the storage of confiscated narcotics at some facilities would be increased if a cache of firearms was co-located at the facility. Further, although contending that this proposal is non-negotiable, the Agency acknowledges that it currently allows routine overnight storage of firearms in locations where appropriate security is available and does not intend to change that practice. Reply at 2.

      Finally, the Agency contends that even if the provision of lock boxes for storage of firearms concerns a matter pertaining to the methods, means, and technology of performing work within the meaning of § 7106(b)(1) of the Statute, it elects not to bargain over that matter.

B.     Union

      The Union claims that the proposal does not affect management's right to determine its internal security practices. The Union notes, in this regard, that the Treasury Policy requires Agency facilities, where appropriate, to provide secure storage for Agency-authorized firearms during duty hours, but that the Agency also contends that such storage is inadequate for securing those firearms when employees are not on duty. The Union asserts that the proposal does not prevent the Agency from deciding the type of secure storage that will be used. In addition, the Union maintains that the Agency provides no evidence that Agency facilities which have in the past allowed, or currently allow, overnight storage of firearms have had problems with the security of those firearms. The Union contends that the Agency has not provided "evidence or rationale to support its speculative conclusion" that the proposal concerns the Agency's security policies. Response at 5. Rather, the Union claims the Agency's position amounts to an abdication by the Agency of its internal security responsibilities and a transfer of those responsibilities to its employees.

      In addition, according to the Union, the proposal is a negotiable procedure to address how the Agency will exercise its management right to determine internal security practices by requiring the Agency to provide secure containers for employees to store their firearms when they are off-duty. Response at 8. [ v59 p752 ]

      The Union also asserts that its proposal is an appropriate arrangement under § 7106(b)(3). The Union argues that employees are adversely affected by the Agency's decision requiring them to use firearms in the performance of their duties and, particularly, its decision to hold them responsible for the storage of those firearms during off-duty periods. Specifically, as adverse effects, the Union cites: (1) the risks to employees' families resulting from the requirement that employees store their firearms in their homes while off-duty; (2) the potential civil and/or criminal liability, and disciplinary action, that could result if the firearms are stolen from, or are misused by family members in their homes; (3) the loss of freedom of movement because of the requirement that firearms be transported directly between home and work; (4) an increase in travel costs resulting from the need to deposit the firearm at home before accomplishing non-work activities and responsibilities; (5) the fear of possible assault for the purpose of taking the firearm when they carry it in plain view on public transportation; and (6) the limitations upon and modifications to behavior and mobility that are required under the 24-Hour Carry Policy. According to the Union, the proposal would provide employees a significant benefit by eliminating, or reducing the impact of these adverse effects.

      The Union disputes the Agency's claim that the proposal would not result in a significant benefit to employees in terms of their freedom of movement. Specifically, the Union disagrees with the Agency's assessment of the significance of the 24-hour carry policy, arguing that 24-hour carry authorization is voluntary and that many employees choose not to invoke that authority because of the burdens imposed by the Agency on those who do so. As the Union notes, the 24-hour carry policy states that: (1) "th[e] authority presents a tremendous responsibility and has potential for significant liabilities [for] the individual officer[;]" (2) employees' "behavior must be significantly modified while armed[;]" and (3) there are "major restrictions in behavior and limitations on mobility[.]" Union Response at 2 (quoting the 24-hour carry policy). See Appendix. The Union asserts that the proposal provides a more significant benefit to employees in terms of freedom of movement and level of employee responsibility than the Agency has demonstrated under the 24-hour carry policy.

      As to the impact of the proposal on the Agency's internal security interests, the Union does not dispute the Agency's claim as to different levels of staffing or Agency control at its various facilities. Rather, the Union claims that the Agency's assertion of increased risk at those facilities as a result of the proposal is speculative and unsupported. In this regard, the Union states that the Treasury Policy requires storage at all Agency facilities during duty hours and that the proposal does not affect the Agency's ability to determine the level of security afforded by the storage it provides. The Union notes that the Agency previously allowed storage of firearms at its work sites during off-duty hours and continues to do so at several locations. The Union also asserts that the Agency has provided no evidence that storage of firearms at those facilities resulted in security problems.

      The Union disputes the Agency's claims concerning the right to assign work and to determine the methods, means, and technology of performing work, and expressly claims that its proposal does not require the Agency to negotiate over any matter covered by § 7106(b)(1). Response at 6. [n4] 

V.     Analysis and Conclusions

A.     Meaning of the Proposal

      By its terms, and as explained by the Union, the proposal would permit the overnight storage of Agency-authorized firearms in a lock box or other secure storage container at all Agency offices where armed employees work or are assigned. The Agency agrees with the Union's explanation of the proposal.

      Further, as stated in the Record of the Post-Petition Conference, the parties agreed that the proposal: (1) affords the Agency discretion to determine the type of container provided, as long as it complies with the standard of security set forth in the proposal; (2) by using the term "overnight," allows employees to store their firearms in the secure container during off-duty hours and on weekends; (3) permits employees working a midnight to morning shift to store their firearms during the day; and (4) by referencing "government offices," applies wherever bargaining unit employees regularly work. Record of the Petition Conference at 2. The parties also agreed that the proposal allows employees to retrieve their firearms during off-duty hours. Id. In this regard, the Union explained further that "employees who choose to store their firearms during their non-work hours would most likely leave their firearms in the container until they resumed duty status." Response at 1. The Agency does not disagree with the Union's explanation. [ v59 p753 ]

      The Union also notes that the Treasury Policy already requires the use of a lock box or other secure storage to store employee firearms while employees are at their work sites during duty hours. In this regard, according to the Union, the proposal does not address on-duty storage. Rather, the Union seeks to extend the use of Treasury Policy-sanctioned storage facilities used during duty hours to off-duty hours. Response at 6. The Agency does not disagree with the Union's further explanation.

      We adopt the Union's interpretation of the proposal, as agreed to by the Agency, for purposes of this decision.

B.     Severance

      In its response to the Agency's statement of position, the Union requested that the second sentence be severed from the first. However, under § 2424.2(h) of the Authority's regulations, and as relevant here, severance "means the division of a proposal or provision into separate parts having independent meaning[.]" The Union has not established that the second sentence of the proposal has any "independent meaning" from the first sentence. Indeed, the Union states that the storage of firearms required by the second sentence "could be accomplished by allowing employees to store their firearms in the same storage facilities that the Agency has already decided upon for on-duty storage as reflected in the first [sentence] of [the] proposal." See Response at 6, 13. Therefore, we deny the request for severance.

C.     The Proposal Affects Management's Right to Determine its Internal Security Practices under § 7106(a)(1) of the Statute

      It is well established that the right to determine internal security practices under § 7106(a)(1) of the Statute includes the authority to determine the policies and practices that are part of an agency's plan to secure or safeguard its personnel, physical property, or operations against internal or external risks. See, e.g., NTEU, 53 FLRA 539, 581 (1997). Where the agency shows a link, or reasonable connection, between its objective of securing or safeguarding its personnel, property, or operations and the policy or practice designed to implement that objective, a proposal that "conflicts with" the policy or practice affects management's right under § 7106(a)(1). See, e.g., NTEU, 55 FLRA 1174, 1186 (1999). "Once [such] a link has been established, the Authority will not review the merits of the agency's plan in the course of resolving a negotiability dispute." Fraternal Order of Police, Lodge 1-F, 51 FLRA 143, 145 (1995) (Lodge 1-F) (citing AFGE, Local 2143, 48 FLRA 41, 44 (1993)). That is, the Authority "will not examine the extent to which the practices adopted by management to achieve its security objectives actually facilitate the accomplishment of those objectives." AFSCME, Locals 2910 & 2477, 49 FLRA 834, 839 (1994) (Locals 2910 & 2477) (citing AFGE, Local 1920, 47 FLRA 340, 349 (1993)).

      The Agency claims that Agency facilities do not all have the same level of staffing and Agency control. The Agency further claims that, as a result, the Agency is unable to assure adequate security for firearms that might be stored at those facilities during off-duty hours. The Agency has determined, in this regard, that by not allowing storage during off-duty periods at those facilities which lack adequate security, it is reducing the risk of theft and furthering its asserted internal security practice determinations. The Agency policies and practices at issue in this case relate to the protection of Agency personnel, property and operations from the risks presented by firearm theft and misuse. Clearly, the Agency has established a link between those policies and practices and its internal security concerns.

      Further, management's right to determine its internal security policies and practices under § 7106(a)(1) of the Statute includes the right to determine the level of security necessary to protect its personnel, property, and operations and the measures required to achieve that security level. See, e.g., NFFE, Local 2050, 36 FLRA 618, 625-27, 652-53 (1990) (Local 2050). In this regard, the Agency states that the existing security measures and Agency controls at most of the Agency's facilities are insufficient to provide security for employee firearms during off-duty hours. In order to provide sufficient security for that purpose, different measures and controls would need to be adopted. That is, in order to protect against theft or misuse of firearms during off-duty hours, implementation of the proposal would require the Agency to establish a level of security at those facilities comparable to the security provided at facilities where storage during off-duty hours is currently allowed. By requiring such actions, the proposal affects management's right to determine its internal security policies and practices under § 7106(a)(1). See id.

      The Union's arguments in support of its claim that the proposal does not concern the Agency's internal security policies and practices essentially challenge the efficacy of the Agency's security policy regarding firearms during off-duty periods. However, as the Authority has consistently made clear, it will not review the alleged lack of effectiveness of an agency's choice of security policy as part of the negotiability determination. [ v59 p754 ] See Locals 2910 & 2477 and Local 1-F. See also AFGE, Local 3302, 37 FLRA 350, at 355 (1990).

      Accordingly, we find that the proposal affects management's right to determine its internal security practices under § 7106(a)(1) of the Statute.

D.     The Proposal does not Constitute a Procedure under § 7106(b)(2) of the Statute.

      Proposals that require the adoption of security measures to ensure a specific level of security do not constitute negotiable procedures under § 7106(b)(2) of the Statute. See, e.g., NFFE, Local 1482, 44 FLRA 637, 648 (1992) (Local 1482). By requiring the Agency to adopt measures that are sufficient to ensure the security of Agency authorized employee firearms stored at its facilities during non-work hours, the disputed proposal in this case does not constitute a procedure within the meaning of § 7106(b)(2) of the Statute. See id.

E.      The Proposal does not Constitute an Appropriate Arrangement under § 7106(b)(3) of the Statute.

      The test for determining whether a proposal is within the duty to bargain under § 7106(b)(3) is set out in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). Under that test, the Authority initially determines whether a proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. An arrangement must seek to mitigate adverse effects "flowing from the exercise of a protected management right." United States Dep't of the Treasury, Office of the Chief Counsel, IRS v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). To establish that a proposal is an arrangement, a union must identify the effects or reasonably foreseeable effects on employees that flow from the exercise of management's rights and how those effects are adverse. See KANG, 21 FLRA at 31. Proposals that address speculative or hypothetical concerns do not constitute arrangements. See, e.g., NFFE, Local 2015, 53 FLRA 967, 973 (1997). The alleged arrangement must also be sufficiently tailored to compensate or benefit employees suffering adverse effects attributable to the exercise of management's rights. See, e.g., AFGE, Local 1687, 52 FLRA 521, 523 (1996).

      If a proposal is an arrangement, the Authority then determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management rights. KANG, 21 FLRA at 31-33.

      The Agency acknowledges that the proposal would operate as an arrangement by mitigating the adverse effects the Union believes will result from the Agency action of making employees responsible for the security of their authorized firearms during off-duty hours. We agree that the proposal constitutes an arrangement and we find that the proposal addresses concerns that are neither speculative nor hypothetical. Additionally, we find that the proposal is sufficiently tailored to those employees who take their authorized firearms home. However, although the proposal constitutes an arrangement within the meaning of § 7106(b)(3), we find for the reasons discussed below that the proposal is not an appropriate arrangement.

      In this case, the Agency has exercised its right to determine its internal security by having employees who are trained and qualified to carry firearms maintain possession and access to their firearms when off-duty. The Union's proposal would operate so as to completely preclude the Agency from exercising that right by mandating a change that is completely inconsistent with the Agency's internal security decision. This proposal would allow employees to leave their firearms at the duty location upon completion of their shift even though the Agency has concluded that Agency personnel, property and operations would be better served if employees qualified to carry firearms maintained possession and access to those firearms while off-duty when the facility at which they work does not present a safe and secure environment for off-duty storage of firearms. In this regard, we note that of the approximately 300 facilities used by the Agency in the accomplishment of its mission, the Union identified approximately 10 facilities where the Agency has determined that adequate security permits the off-duty storage of firearms. Because this proposal would mandate that the Agency undertake actions to provide such security even at locations that are not under its control, we find this proposal excessively interferes with the exercise of the Agency's management rights.

      The Authority has found that proposals do not constitute appropriate arrangements where the proposals negate or nullify management's proposed exercise of its § 7106(a) right. See, e.g., AFGE, National Council of Field Labor Locals, Local 2139, 57 FLRA 292, 294 (2001) (proposal that completely precludes the Agency from using language it wishes to use in customer service policy outweighs benefits to employees); IFPTE, Local 1, 49 FLRA 225, 249 (1994) (IFPTE) (proposal acted as absolute restriction on right to assign particular duties to certain employees, found not to be appropriate arrangement); NFFE, Local 28, 47 FLRA 873, 876-80 (1993) (union proposal, in response to agency internal security determination to use unannounced random spot checks of all hand carried items, was to require such [ v59 p755 ] checks only where reason to believe unauthorized possession or theft occurred: Authority found proposal would severely limit agency internal security determination, thus would not be an appropriate arrangement); NFFE, Local 15, 30 FLRA 1046, 1057-1058 (1988)(proposal that completely negated the Agency's decision to use random drug testing for purposes of protecting security would reverse the substantive impact of that decision and is not an appropriate arrangement); NAGE, Local R7-23, 23 FLRA 753, 759 (1986) (Local R7-23) (proposal which negates management's exercise of its right to determine internal security is excessive when it reverses the substantive effect of management's action). The Authority reached these conclusions, even where the proposals' benefits to employees were significant, finding that proposals which erode or reverse the substantive effect of a management action taken pursuant to its management rights do not constitute appropriate arrangements. IFPTE, 49 FLRA at 249; Local R7-23, 23 FLRA at 759.

      While the risk of harm to employees and their families from firearms properly stored and secured at home is not taken lightly, the Authority is not in a position, and does not have the ability, to second-guess the merits of an agency's determinations about what its internal security practices should be. Lodge 1-F and supra. Here, the Agency has determined, as part of its internal security determinations regarding the protection of personnel, property and operations, that firearms used by Agency employees in the performance of their duties need to be secured by the employees trained and authorized to possess them when they are off-duty. This internal security determination also effectuates the performance of unscheduled overtime work at other locations. While we find that some employees would benefit from the Union's proposal, the extent of that benefit has not been established by the record and by effectively overriding the Agency's internal security determination regarding those employees working at facilities and locations ill-equipped and unsuitable for off-duty storage of firearms, the proposal would completely negate the Agency's determination that its internal security is best served by having employees retain possession of their firearms while off-duty. [n5] 

      Consequently, we conclude that by completely precluding the Agency from having employees retain possession of their firearms while off-duty, the Union's proposal imposes a burden upon the Agency's exercise of its management right to determine its internal security practices that outweighs the benefits provided to some unit employees. AFGE, National Veterans Administration Council, 40 FLRA 1052, 1056 (1991) (a proposal that precludes an agency from exercising a management right inherently cannot constitute an appropriate arrangement); see also, AFGE, Local 1164, 55 FLRA 999, 1004 (1999); AFGE, Local 1917, 55 FLRA 228, 235 (1999). While one might argue that the Agency is not precluded from exercising its management right in some other way, we note that the effect of such a proposal would be to permit an exclusive representative to bargain over an agency's substantive exercise of its management rights, a conclusion explained supra. The Authority has made clear that Congress did not empower agencies to bargain away their authority to make decisions regarding the exercise of their management rights. Great Lakes Program Service Center, Social Security Administration, Dep't of Health and Human Services, Chicago, Ill., 9 FLRA 499, 510 (1982). To hold otherwise would permit the same type of improper outcome discussed by the court in AFGE, Local 2782 v. FLRA, 702 F.2d 1183, 1188 (D.C. Cir. 1983) (a union does not have the ability through impact and implementation bargaining to undo or negate an agency's substantive exercise of its 7106(a) rights). Accordingly, we find that the proposal is outside the duty to bargain because it excessively interferes with the Agency