File 2: Opinion of Member Pope
[ v59 p757 ]
Dissenting Opinion of Member Pope:
I agree with the majority's conclusions that the proposal: (1) affects management's right to determine its internal security practices; (2) is not a negotiable procedure under § 7106(b)(2) of the Statute; and (3) constitutes an arrangement for employees adversely affected by the exercise of management's right. I disagree with the majority's conclusion that the proposal is not an "appropriate" arrangement under § 7106(b)(3) of the Statute because it would "completely preclude" the Agency from exercising its right. Majority Opinion at 14. Therefore, I dissent.
The majority's conclusion that the proposal completely precludes the Agency from exercising its right to determine internal security practices is based on a misreading of the record. In this regard, the majority finds that the Agency's internal security determination is "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." Id. at 15. This is consistent with the Agency's initial assertion in this case that it "never authorized [employees to] routine[ly]" store firearms at work overnight. Statement of Position at 4. However, in its reply, the Agency conceded that it "does allow routine overnight storage in certain locations, where appropriate security is available." Agency Reply at 2. Thus, the internal security practice that the majority finds the proposal would "negate or nullify," does not exist. [n1] Majority Opinion at 14.
The internal security practice that the Agency does, in the end, describe is that it will not permit routine overnight storage of firearms "at locations with inappropriate storage facilities." Agency Reply at 2. The Union's proposal, which would require that the Agency make secure overnight storage available at all locations, in no way negates the Agency's practice of disallowing inappropriate storage of firearms. Rather, it requires that secure storage be provided. Thus, resolving the negotiability of the proposal does not require the Authority to "second-guess the merits" of the Agency's determination of its security practice. Majority Opinion at 15. Indeed, it is hard to imagine anyone second-guessing the Agency's determination that weapons must be stored securely. Moreover, the majority's observation that the decision to permit overnight storage at some locations is an exercise of the right to determine security practices, Majority Opinion at 16 n.5, sheds no light on the issues in this case. The Union is entitled under § 7106(b)(3) of the Statute to bargain over proposals that do not excessively interfere with the Agency's right. This obviously encompasses proposals modifying Agency decisions regarding that right.
As stated in the majority opinion, in determining whether a proposal excessively interferes with a management right, the Authority weighs "the competing practical needs of employees and managers." NAGE, Local R14-87, 21 FLRA 24, 31-32 (1986). Applying this test to the evidence in the record, it is apparent that the benefit to employees outweighs the intrusion on management rights demonstrated by the Agency.
There is no dispute that the proposal would provide significant benefits to employees. Employees would not be required to bring firearms into their homes after work, thereby eliminating the potential for a firearm to be "accessed by family, friends, neighbors or intruders with the potential for lethal consequences." Union Petition at 2. This benefit is both significant and undeniable. In fact, the Agency itself acknowledges that carrying a firearm off duty results in a "tremendous responsibility," with the "potential for significant liabilit[y] to the individual officer" that, obviously, requires "that his or her behavior must be significantly modified while armed." Statement of Position, Ex. 3 at 1.
On the other side of the balance, the Agency claims that it would be "extremely costly and impractical" to allow overnight weapons storage in all facilities. Id. at 2. The Agency provides no support for this claim, however, and makes no attempt to identify either the number of "inappropriate" facilities or the cost of rendering them appropriate. [n2] Moreover, the Agency asserts only that "many" locations are not secure, Statement of Position at 4, an assertion the majority exaggerates considerably when it states that "most" of the Agency's facilities are claimed to be inappropriate. Majority Opinion at 12. In addition, the Agency's claim is undercut by the fact that, under existing policy, the Agency is required to provide secure storage at all facilities for employees' use during duty hours. [n3] Further, the Agency's claim that the proposal would place a substantial burden on its ability to utilize employees in overtime [ v59 p758 ] callback situations is unsupported: the record is devoid of any evidence of such burden even though off-duty storage is now permitted in some locations.
Based on the foregoing, I would find that the undeniable benefits to employees resulting from the proposal outweigh the burdens on management's right.
Accordingly, I would find the proposal negotiable as an appropriate arrangement under § 7106(b)(3) of the Statute. [n4]
File 1: Authority's Decision in 59 FLRA No. 135
File 2: Opinion of Member Pope
Footnote # 1 for 59 FLRA No. 135 - Opinion of Member Pope
Although the majority acknowledges that the Agency permits overnight storage at secure locations, see Majority Opinion at 14, it fails to recognize that this shows that the disputed internal security practice is not, as the Agency initially claimed, to require all employees to store weapons at home but, instead, is to require that weapons be stored at secure locations.
Footnote # 2 for 59 FLRA No. 135 - Opinion of Member Pope
Of course, finding the proposal negotiable would not preclude the Agency from raising, at the bargaining table or in proceedings before the Federal Service Impasses Panel, any specific concerns it has with respect to the proposal.
Footnote # 3 for 59 FLRA No. 135 - Opinion of Member Pope
Footnote # 4 for 59 FLRA No. 135 - Opinion of Member Pope
I would also reject the Agency's claim that the proposal conflicts with its right to assign work under § 7106(a)(2)(B) of the Statute. The proposal does not restrict the Agency from assigning any task to any employee at any time. The fact that there is no evidence that the existing practice of permitting off-duty storage at some facilities has inhibited the exercise of the right to assign work supports a conclusion that it does not, and would not, have that effect. In addition, because I would find the disputed portion of the proposal to be within the duty to bargain, I would find it unnecessary to address the Union's request to sever the proposal. See 5 C.F.R. § 2424.2(h) (severance applies where a portion of a proposal is found to be outside the duty to bargain or contrary to law).