---

36 FLRA No. 70

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 2050

(Union)

and

ENVIRONMENTAL PROTECTION AGENCY

(Agency)

0-NG-1645

DECISION AND ORDER ON NEGOTIABILITY ISSUES

August 16, 1990

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). It concerns the negotiability of nine proposals pertaining to employee security at certain facilities of the Agency.⁽¹⁾

Proposal 1 requires the Agency to provide the same level of protection for employees located at its Headquarters facilities as that provided for employees located at its Crystal City Mall-2 facility. We find that Proposal 1 directly interferes with management's right under section 7106(a)(1) of the Statute to determine its internal security practices, but we conclude that it is negotiable because it is an appropriate arrangement under section 7106(b)(3) of the Statute.

Proposal 5 requires the Agency to protect employees' workspace from projectiles and other dangerous objects. We find that Proposal 5 is nonnegotiable because it conflicts with management's right to determine its internal security practices under section 7106(a)(1).

Proposal 8 requires the Agency to notify the Union in writing within 24 hours of incidents involving lost master keys, broken windows due to projectiles, unmanned guard posts, unsecured or inoperable doors, armed guards who have worked without certification, and lost weapons. We find that Proposal 8 does not directly interfere with management's right to determine its internal security practices under section 7106(a), but instead constitutes a negotiable procedure under section 7106(b)(2). We also find that Proposal 8 does not interfere with management's rights to direct employees under section 7106(a)(2)(A); to assign work and to contract out under section 7106(a)(2)(B); or to determine the technology, methods and means of performing work pursuant to section 7106(b)(1).

Proposal 11 requires the Agency to issue Security Alerts concerning serious incidents that have occurred near the Agency's Headquarters. We find that Proposal 11 does not concern the Agency's right to determine its internal security practices under section 7106(a)(1). We also find that the proposal does not interfere with management's rights to direct employees under section 7106(a)(2)(A), to assign work and contract out under section 7106(a)(2)(B), or to determine the technology, methods and means of performing work pursuant to section 7106(b)(1). Accordingly, it is negotiable.

Proposal 12 requires the Agency to take certain measures to protect against the theft of employees' personal property. We find that Proposal 12 is negotiable because it does not interfere with management's rights to determine its internal security practices; to direct employees under section 7106(a)(2)(A); and to assign work and to contract out under section 7106(a)(2)(B); or to determine the technology, methods and means of performing work under section 7106(b)(1).

Proposal 18 requires the Agency to test and repair the fire alarm system after hours or during weekends. We find that Proposal 18 is negotiable because it does not directly interfere with management's rights to determine its internal security practices under section 7106(a)(1), to assign work and to direct employees under section 7106(a)(2)(A) and (B), or to determine the technology, methods and means of performing work under section 7106(b)(1).

Proposal 19 requires the Agency to test loudspeakers semi-annually and fire alarms as required by law, regulation or ordinance. We find that Proposal 19 does not directly interfere with management's right to determine its internal security practices under section 7106(a)(1). We also find that Proposal 19 does not directly interfere with management's rights to direct employees under section 7106(a)(2)(A), to assign work or to contract out under section 7106(a)(2)(B), or to determine the technology, methods and means of performing work under section 7106(b)(1). We further conclude that the proposal does not interfere with management's decision-making process. Accordingly, it is negotiable.

Proposal 22 requires the Agency to notify the Union within 24 hours of any bomb threats. We find that Proposal 22 does not directly interfere with management's right to determine its internal security practices under section 7106(a)(1), but instead constitutes a negotiable procedure under section 7106(b)(2). We also find that Proposal 22 does not interfere with management's rights to direct employees under section 7106(a)(2)(A), to assign work or to contract out under section 7106(a)(2)(B), or to determine the technology, methods and means of performing work under section 7106(b)(1).

Proposal 24 requires management to sign for courier packages for bargaining unit employees at the main entrances of buildings in order to prevent entry of unauthorized or dangerous personnel into the Agency's facilities. We find that although Proposal 24 directly interferes with management's right to determine its internal security practices under section 7106(a)(1), it constitutes a negotiable appropriate arrangement under section 7106(b)(3) because it does not excessively interfere with management's rights.

II. Background

The Agency maintains facilities in the Washington, D.C. metropolitan area at the Waterside and Crystal City Malls and the Fairchild Building. In recent years there have been a number of incidents involving employees' security in and around these facilities. For example, an employee at the Agency's Crystal City Mall-2 facility was knifed in her office by a nonemployee who had improperly gained access to the building. The employee died of her wounds in the lobby of the building. See Response at 1. There have been numerous other incidents that have threatened the security at the Agency's facilities, including thefts, vandalism, threats, and bullet holes found in windows of employee offices. See Union's Petition for Review (Petition), Enclosures 1, 2 and 4.

The Union requested negotiations on the impact and implementation of the Agency's security program because of employees' concerns about their own personal safety. The Union's proposals concern matters that include: (1) the protection of employees' personal property located on Agency owned or leased property; and (2) the safeguarding of employees while at work and while using parking facilities adjacent to the Agency's facilities.

III. Conditions of Employment

The Agency contends that Proposals 5, 8, 11, 12, and 22 relate to actions outside of its control that do not pertain to conditions of employment of unit employees. We find that these proposals concern conditions of employment. In Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986), the Authority stated that in determining whether a matter pertaining to bargaining unit employees concerns a condition of employment of those employees it would examine "[t]he nature and extent of the effect of the matter proposed to be bargained on [the] working conditions of those employees." 22 FLRA at 236-37 (emphasis in original).

Applying that criterion to this case, we find that Proposals 5, 8, 11, 12 and 22 affect the working conditions of bargaining unit employees because they concern the security of employees at their workplace. These proposals concern such matters as the protection of employees from projectiles and other dangerous objects; union notification of serious incidents involving the security at and near the workplace; protection against the theft of employees' personal property; and union notification of any bomb threats within 24 hours of their occurrence.

These proposals on their face concern unit employees' security in the workplace. While the Agency may have no control over the occurrence of the particular threats to employee security addressed by the proposals, it is able to take action to protect employees' security. The proposals in this case concern actions that the Agency can take to protect employees in the workplace. The proposals, therefore, relate to matters affecting employee working conditions and, thus, concern conditions of employment.

The degree of control that an agency exercises over the subject matter of a proposal is not determinative of whether that proposal concerns conditions of employment of unit employees. See Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 22 FLRA 351, 361 (1986), affirmed sub nom. Overseas Education Association, Inc. v. FLRA, 827 F.2d 814, 818-20 (1987) (where a union holds exclusive recognition in a component of an agency, that component is obligated to bargain over conditions of employment despite the fact that control over a particular condition of employment rests with a different organizational component of the same overall agency). We find no merit, therefore, to the Agency's contention that Proposals 5, 8, 11, 12, and 22 do not relate to conditions of employment.

IV. Proposal 1

All bargaining unit employees at EPA Headquarters facilities should receive the same level of protection currently provided to our bargaining unit employees at Crystal City Mall-2.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 1 is nonnegotiable because it: (1) "usurp[s] management's prerogative to determine [its] internal security practices" in violation of section 7106(a)(1) of the Statute; (2) "interferes with management's right under section 7106(b)(1) to determine the technology, methods, and means of performing its work of safeguarding Agency property"; (3) "restrict[s] management's right to direct employees under section 7106(a)(2)(A)"; and (4) is not a procedure or an appropriate arrangement under section 7106(b)(2) and (3) of the Statute. Statement at 2, 5 and 6.

The Agency contends that the "level of protection" provided to employees at its facilities is within its discretion under section 7106(a)(1). Id. at 5. The Agency argues that under section 7106(a)(1) it has the right to determine whether to arm guards, use electronic access equipment, or take other measures that relate to how it accomplishes its security functions. The Agency argues that because Proposal 1 specifies the type of security practices to be used, it directly interferes with management's right to determine its internal security practices.

The Agency contends that the proposal is nonnegotiable under section 7106(b)(1) because it concerns the technology, methods and means of performing the Agency's work of "safeguarding Agency property." Id. The Agency argues that proposals requiring management to provide specific equipment to guards and employees are nonnegotiable under section 7106(b)(1) when the equipment concerns the technology of performing the Agency's security function. The Agency also argues that the proposal directly interferes with its right to direct employees under section 7106(a)(2)(A) to the extent that it "directs management to take supervisory actions in accordance with qualitative standards set by the . . . proposal." Id. at 6.

The Agency also contends that Proposal 1 does not constitute a procedure under section 7106(b)(2). Finally, the Agency contends that the proposal does not constitute an appropriate arrangement under section 7106(b)(3) because it excessively interferes with management's right to determine its internal security practices under section 7106(a)(1).

2. Union

According to the Union, Proposal 1 requires that "security measures at the Waterside Mall and the Fairchild Building facilities be intensified to the level of protection provided at Crystal City Mall-2." Response at 2. The security measures instituted by the Agency at Crystal City Mall-2 include providing armed guards, locking security cages in the stairwell, and electronic card access system on every floor. Petition, Explanation of Proposal 1. The Union claims that even though Waterside Mall and the Fairchild Building are located in more dangerous areas than the Crystal City facility, management "is providing less security" at these facilities than at Crystal City. Id. In the Union's view, management's security determination is "jeopardizing the safety of . . . employees and their property" as reflected by the "numerous theft and incident reports." Id. and Enclosure 2 attached to the Petition.

The Union concedes that Proposal 1 affects the Agency's right to determine its internal security practices. However, the Union contends that the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute for employees adversely affected by the exercise of management's right.⁽²⁾ The Union argues that, after weighing the competing needs of employees and managers, Proposal 1 does not excessively interfere with management's rights under the test established by the Authority in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard).

In applying the test used by the Authority to determine whether a proposal constitutes an appropriate arrangement under section 7106(b)(3), the Union argues that: (1) employees are adversely affected because they feel threatened on the job as a result of thefts and assaults; (2) employees have no control over the security measures that the Agency employs in the workplace; (3) the benefits derived from better security under Proposal 1 would improve morale and productivity and would reduce the Government's financial liability under the Federal Employees Compensation Act, 31 U.S.C. § 3721; and (4) Proposal 1 would increase employee protection and reduce Government liability and would thereby promote effective and efficient Government operations.

B. Analysis and Conclusions

We conclude that Proposal 1 directly interferes with management's right under section 7106(a)(1) to determine its internal security practices. We further conclude that the proposal constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

1. Proposal 1 Interferes With Management's Right Under Section 7106(a)(1) to Determine Its Internal Security Practices

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. See National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706 (1990) (EPA); National Federation of Federal Employees, Local 15 and U.S. Army Armament, Munitions and Chemical Command, Rock Island Arsenal, Rock Island, Illinois, 30 FLRA 472, 475 (1987) (Rock Island Arsenal); National Association of Government Employees, SEIU, Local R7-51 and Department of the Navy, Navy Public Works Center, Great Lakes, Illinois, 30 FLRA 415, 417 (1987) (Navy Public Works Center, Great Lakes, Illinois).

Proposal 1 requires that the level of "protection" at Waterside Mall and the Fairchild Building be the same as that at Crystal City Mall-2. The proposal establishes a standard governing the actions the Agency will take and the practices it will adopt to safeguard the personnel, the property, and the operations at Waterside Mall and the Fairchild Building. Under that standard, management's choices as to the security measures that it will adopt at those facilities are restricted to the measures that will provide the "same level of protection" as exists at Crystal City Mall-2. Management would be precluded by the proposal from instituting security measures at those facilities that would provide less--or more--than the level of protection at Crystal City Mall-2, regardless of whether it determined that those measures were appropriate. In short, Proposal 1 establishes a substantive limitation on management's determination of the internal security practices that it will employ at Waterside Mall and the Fairchild Building.

Proposals which establish substantive criteria governing the exercise of a management right directly interfere with that right. See West Point Elementary School Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008, 1010 (1990) (West Point Elementary School); National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 30 FLRA 1046, 1059-60 (1988) (Rock Island I)⁽³⁾; American Federation of Government Employees, AFL-CIO, Local 1501 and Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 24 FLRA 470, 472-73 (1986). In Defense Logistics Council of American Federation of Government Employees Locals v. FLRA, 810 F.2d 234 (D.C. Cir. 1987) (Defense Logistics Council), the court upheld the Authority's determination that a proposal establishing standards governing the suspension of driving privileges for driving while intoxicated were nonnegotiable under section 7106(a)(1). The court stated as follows:

Each of these provisions seeks to modify the criteria by which the [a]gency determines suspensions. Each is clearly substantive. . . . Under the "direct interference" test, therefore, these [u]nion proposals are nonnegotiable since they directly interfere with management's right to determine its internal security practices. . . . The language of these proposals would substantively alter the decisionmaking criteria used by management in implementing the Directive.

Defense Logistics Council, 810 F.2d at 240 (citations omitted). See also Department of Defense, Army-Air Force Exchange Service v. FLRA, 659 F.2d 1140, 1151-59 (D.C. Cir. 1981), cert. denied sub nom. American Federation of Government Employees v. FLRA, 455 U.S. 945 (1982).

Moreover, 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 American Federation of Government Employees, Local 3748 v. FLRA, 797 F.2d 612, 617-18 (D.C. Cir. 1986); National Treasury Employees Union v. FLRA, 767 F.2d 1315, 1317 (9th Cir. 1985). See also Rock Island I, 30 FLRA at 1060; Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384, 386-87 (1987), affirmed mem. sub. nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 30, 1988) (per curiam).

Even though Proposal 1 does not dictate the particular security measures that management must adopt, it limits management's decision as to the security measures it will institute at Waterside Mall and the Fairchild Building to those measures that will provide the same level of protection as that at Crystal City Mall-2. Accordingly, we conclude that Proposal 1 establishes a substantive criterion that directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. See Rock Island I, 30 FLRA at 1060. Proposal 1, therefore, is nonnegotiable unless it also constitutes an appropriate arrangement under section 7106(b)(3).

We further find, contrary to the Agency's position, that Proposal 1 does not interfere with the Agency's right to determine the technology, methods and means of performing its work. Proposal 1 prescribes generally that the Agency will provide the same level of security at Waterside Mall and the Fairchild Building as that provided at Crystal City Mall-2. The proposal does not determine how the Agency will achieve that level of security.

We also find that Proposal 1 does not directly interfere with management's right to direct employees. The proposal concerns the Agency's decision as to the security measures that it will adopt at two of its facilities, not the direction that it will give to its employees.

2. Proposal 1 Is An Appropriate Arrangement Under Section 7106(b)(3)

The Union claims that Proposal 1 constitutes an appropriate arrangement within the meaning of section 7106(b)(3). To determine whether the proposal constitutes an appropriate arrangement, we must determine whether the proposal is (1) intended to be 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. Kansas Army National Guard.

The Union contends that Proposal 1 is intended to protect employees from "assaults and robberies" which result from the "Agency's policies and practices regarding building security." Response at 2 and 3. We conclude that the proposal is intended to address the adverse effects of the internal security practices that the Agency has employed at its facilities and, therefore, that it is an "arrangement" within the meaning of section 7106(b)(3).

The next question is 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 will 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 is not an appropriate arrangement because it interferes to an excessive degree with management's right to determine its internal security practices. Statement at 5. Other than citing Authority cases that held that particular proposals did not constitute appropriate arrangements, the Agency offers no argument and presents no evidence as to the burden that Proposal 1 would place on the exercise of management's rights.

The Union argues, citing some of the factors set forth in Kansas Army National Guard, that the currrent state of security at Waterside Mall and the Fairchild Building is such that, due to the number and severity of the incidents that have occurred, employees feel threatened on the job. The Union also notes that employees have no control over the workplace to which they have been assigned or over the crime that occurs in and about that workplace. Response at 3-4. The Union has provided evidence supporting its claims as to the continuing nature of the security problems at the Agency's facilities and as to the severity of the incidents, including thefts of Agency property and assaults on employees. Enclosures 1, 2 and 4 attached to the Petition. The Agency did not refute the Union's claims.

The Union contends that, given the nature and severity of the threats to the security of the Agency's workplace, by improving the level of security at Waterside Mall and the Fairchild Building to the level of security provided at Crystal City Mall-2 the benefits afforded employees by Proposal 1 would far outweigh the burden imposed on management's rights. In fact, the Union argues, the reduction in the number of thefts and assaults that would result from the improved security would by itself outweigh any negative impact on management. Response at 4-5. We agree.

While we recognize that Proposal 1 would restrict management's discretion as to the level of security that it may adopt at Waterside Mall and the Fairchild Building, the Agency has made no argument and presented no evidence as to how that restriction would impose a burden on management that would outweigh the clear benefits to employees of improved security. We note, for example, that the proposal does not require that management adopt precisely the same security measures at Waterside Mall and the Fairchild Building as it has established at Crystal City Mall-2. The proposal requires only that the same level of security be provided.

We conclude, therefore, that management's discretion as to the measures that it will adopt to provide that level of security is unimpaired by the proposal. The only restriction on management's discretion that would appear to result from the proposal is that the Agency would be required to change the level of security that currently exists at Waterside Mall and the Fairchild Building. We do not believe that management's interest in being able to keep things as they are outweighs the interest of employees in better protection of their security in the workplace.

Accordingly, we find that Proposal 1 does not excessively interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. We conclude, therefore, that Proposal 1 is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

V. Proposal 5

EPA shall provide for protection from bullets, other projectiles, exploding or other incendiary devices and any other dangerous objects including automobiles from entering the work space of bargaining unit employees located in ground floor offices with windows especially in the N.E. Mall and the ground floors of East Tower, West Tower, and the first or second floor offices with windows facing the terrace at Waterside Mall.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 5 is nonnegotiable because it interferes with management's rights to: (1) determine its internal security practices under section 7106(a)(1) of the Statute; (2) determine the technology, methods and means of performing its work of safeguarding Agency property under section 7106(b)(1); (3) contract out security functions under section 7106(a)(2)(B); and (4) direct employees and assign work under section 7106(a)(2)(A) and (B). The Agency asserts that the proposal does not constitute a procedure or an appropriate arrangement under section 7106(b)(2) and (3) of the Statute. The Agency also contends that the proposal relates to actions outside its control that do not pertain to conditions of employment of unit employees.

2. Union

The Union contends that Proposal 5 would require the Agency to provide employees "protection" from the "hazards" described in the proposal. Response at 6. The Union asserts that the proposal does not mandate the "degree of protection" or any "particular means or procedures" concerning Agency security, but only requires the Agency to provide protection for employees that is similar to that required by proposals that the Authority found negotiable in American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 14 FLRA 6 (1984) (Proposal 2) (Office of Personnel Management, Washington, D.C.), enforced on other grounds sub nom. FLRA v. Office of Personnel Management, Washington, D.C., 778 F.2d 884 (D.C. Cir. 1985) and National Federation of Federal Employees and Haskell Indian Junior College, Bureau of Indian Affairs, Department of the Interior, Lawrence, Kansas, 22 FLRA 539 (1986) (Haskell Indian Junior College). Id. The proposals in those cases required the agency to provide adequate security and take necessary steps to protect employees and their property. The Union asserts that those proposals allowed the agency discretion to determine the level of security that satisfied the contractual standard of "necessary." Response at 7. The Union argues that the instant proposal is similar in effect and, therefore, negotiable. The Union does not contend that Proposal 5 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusion

Because we have determined that the proposal concerns a condition of employment, we must now determine whether it interferes with management's rights under section 7106(a) of the Statute. The Agency claims that Proposal 5 interferes with its right to determine its internal security practices under section 7106(a)(1) of the Statute. We agree.

As noted above, the term "internal security practices" includes those policies and actions which are part of the Agency's plan to secure or safeguard its personnel, physical property, and operations from internal and external threats. EPA, 35 FLRA 706; Rock Island Arsenal, 30 FLRA 472; Navy Public Works Center, Great Lakes, Illinois, 30 FLRA 415. The proposal requires the Agency to provide protection that would prevent bullets, other projectiles and dangerous objects, including automobiles, from entering the workspace of unit employees located in the areas identified in the proposal. We find that the identification of the threats against which management will protect employees and the physical integrity of the workplace is linked to the Agency's internal security practice of safeguarding its personnel and property. See American Federation of Government Employees, AFL-CIO, Local 1411 and Department of the Army, Fort Benjamin Harrison, 32 FLRA 990, 993 (1988) (Fort Benjamin Harrison); American Federation of Government Employees Council 214, AFL-CIO and Department of Defense, Department of the Air Force, Air Force Logistics Command, 30 FLRA 1025, 1028 (1988) (Air Force Logistics Command), review denied sub nom. American Federation of Government Employees Council 214 v. FLRA, 865 F.2d 1329 (D.C. Cir. 1988) (order). We conclude, therefore, that the Agency's decision as to the threats against which it will protect employees and the workplace constitutes an integral aspect of the Agency's determination of the internal security practices it will adopt for that purpose.

The Union claims that the proposal is negotiable, citing Office of Personnel Management, Washington, D.C. and Haskell Indian Junior College. For the following reasons, we conclude that Office of Personnel Management, Washington, D.C. and Haskell Indian Junior College must be overruled. Proposals that establish a substantive criterion that would restrict management's discretion in the exercise of a management right directly interfere with that right. See West Point Elementary School, 34 FLRA at 1010; Rock Island I, 30 FLRA at 1059-60. Office of Personnel Management, Washington, D.C. and Haskell Indian Junior College concerned the adequacy of and the necessity for the measures which an agency would take to provide security for its employees. The terms "adequacy" and "necessity" prescribe substantive criteria governing management's decision as to the security measures it will adopt. Consequently, consistent with West Point Elementary School and Rock Island I, we will no longer follow the decisions in Office of Personnel Management, Washington, D.C. and Haskell Indian Junior College.

Proposal 5 concerns the particular threats against which the Agency must protect employees. Proposal 5 does not address the measures the agency must adopt to provide that protection. We conclude, however, that by identifying specific threats and requiring the Agency to respond to those threats, Proposal 5 is nonnegotiable.

The question presented by Proposal 5 is whether management can be required to take action to deal with a particular threat to employee security. Management's rights under section 7106 include not only the right to act, but also the right not to act. See National Association of Government Employees, Local R1-109, AFL-CIO and Veterans Administration Medical Center, Newington, Connecticut, 26 FLRA 532, 534 (1987); American Federation of Government Employees, AFL-CIO, Local 12 and Department of Labor, 18 FLRA 418, 421 (1985); American Federation of Government Employees, AFL-CIO, Local 1858 and Department of the Army, U.S. Army Missile Command, Redstone Arsenal, Alabama, 10 FLRA 440, 443-44 (1982); National Treasury Employees Union and Internal Revenue Service, 2 FLRA 281, 283 (1979). Because Proposal 5 would require management to institute security measures to protect its employees and property from projectiles and other dangerous objects that may enter the workplace, the proposal directly interferes with management's right to determine its internal security practices. Under section 7106(a)(1), management retains the discretion to determine that it will not take action against those specific threats. In so finding, we address only the issue of the Agency's legal obligation to bargain over such a proposal. We express no opinion as to the merits of an Agency decision not to provide the protection sought by the proposal.

Consequently, in the absence of a claim that Proposal 5 constitutes an appropriate arrangement under section 7106(b)(3), we conclude that Proposal 5 is nonnegotiable.

VI. Proposal 8

The EPA shall notify the Union President or his designee in writing within 24 hours of the following serious incidents:

(a) lost master keys or any external door keys to EPA Headquarters facilities.

(b) windows broken due to objects impacting on or penetrating the window at EPA Headquarters facilities.

(c) totally unmanned posts at any Headquarter entrances at Waterside Mall, Fairchild, and Crystal City Mall.

(d) any door which is reported unsecured or inoperable for more than two consecutive days.

(e) armed guards who have worked one day or more without proper weapon certification.

(f) lost weapons reported at HQ facilities.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 8 is nonnegotiable because it interferes with management's rights to: (1) determine its internal security practices under section 7106(a)(1) of the Statute; (2) determine the technology, methods and means of performing its work of safeguarding Agency property under section 7106(b)(1); (3) contract out security functions under section 7106(a)(2)(B); and (4) direct employees and assign work under section 7106(a)(2)(A) and (B). The Agency asserts that the proposal does not constitute a procedure under section 7106(b)(2) or an appropriate arrangement under section 7106(b)(3) of the Statute because it unduly restricts management's ability to make changes in security practices. The Agency also contends that the proposal relates to actions outside its control that do not pertain to conditions of employment of unit employees.

2. Union

According to the Union, Proposal 8 is intended to provide the Union with notification of the listed incidents so that it can timely react to situations which could affect unit employees, including bargaining on the impact of the Agency's response to those incidents and notifying employees. The Union contends that although the Agency maintains that the proposal interferes with certain management rights, the Agency "has not offered a single argument beyond a [bare] assertion" to support its contentions. Response at 8.

The Union asserts that the proposal does not interfere with any management's rights cited by the Agency. The Union also contends that Proposal 8 concerns conditions of employment of bargaining unit employees in the workplace. Finally, the Union asserts that even if the proposal conflicts with management's rights, it constitutes an appropriate arrangement for employees under section 7106(b)(3) of the Statute. The Union contends that the proposal satisfies the requirements of Kansas Army National Guard because: (1) it addresses the physical safety of employees in the workplace; (2) the circumstances giving rise to the adverse affects are totally outside the employees' control; (3) it "only requires the Agency to notify the Union within 24 hours of . . . the listed incidents"; and (4) it benefits employees by providing the Union with "timely information so that the Union can follow-up and see that any hazard to employees is abated." Response at 14-15.

B. Analysis and Conclusion

Proposal 8 requires the Agency to notify the Union in writing within 24 hours of incidents involving lost master keys, broken windows due to projectiles, unmanned guard posts, unsecured or inoperable doors, armed guards who have worked without certification, and lost weapons. The proposal does not prescribe any actions which the Agency must take to deal with the incidents listed in the proposal nor would the proposal preclude the Agency from taking any action it determined was necessary as a part of its internal security policies to respond to the incidents. Proposal 8 "only requires the Agency to notify the Union within 24 hours" of the occurrence of a listed incident. Response at 14-15. It requires "[n]o further action . . . . Management retains total discretion [to take] any action in response to an incident." Id. The Union only seeks notification in order that it can timely react to incidents occurring in the workplace by requesting impact bargaining when necessary and in order to notify employees of such incidents.

Proposals which merely require the Agency to notify employees of matters concerning their conditions of employment are negotiable as procedures under section 7106(b)(2) of the Statute. See, for example, EPA (Proposal 3). In EPA, we found that the Agency's security bulletins and security alerts simply notified employees of matters concerning their conditions of employment and did not amount to an internal security practice. We concluded, therefore, that Proposal 3, which required that the Union be provided an opportunity to review the content of these documents prior to distribution, did not interfere with the Agency's internal security practices. We also found that, even assuming that the documents did concern internal security matters, Proposal 3 constituted a negotiable procedure. See also National Federation of Federal Employees, Local 1263 and Defense Language Institute, Presidio of Monterey, California, 29 FLRA 61 (1987) (Defense Language Institute) (Proposal 4).

In this case, even assuming that Proposal 8 concerns internal security matters, we find that requiring the Agency to notify the Union of the incidents listed in the proposal would not directly interfere with the Agency's right to determine its internal security practices. Rather, Proposal 8 constitutes a negotiable procedure under section 7106(b)(2) of the Statute. See EPA (Proposal 3).

Proposal 8 requires only that the Agency notify the Union of incidents that could pose a threat to employees' well-being. Like the notification required by Proposal 3 in EPA, the notification requirement established by Proposal 8 in this case would not interfere with management's right under section 7106(a)(1) of the Statute to determine its internal security practices. The Agency makes a bare assertion that the proposal would interfere with its right to determine its internal security practices. However, the Agency has not demonstrated how notification to the Union of the incidents listed in the proposal would interfere with its right to determine its internal security practices. That is, the Agency has not shown how notifying the Union of the incidents listed in the proposal would interfere with its discretion and judgment with respect to the implementation of its internal security policies.

The parties bear the burden of creating a record upon which the Authority can make a negotiability determination. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982). A party failing to meet its burden acts at its peril. Consequently, we find that the Agency has failed to provide a record to support a conclusion that Proposal 8 interferes with the Agency's right to determine its internal security practices. We conclude, therefore, that Proposal 8 does not directly interfere with management's right under section 7106(a)(1) of the Statute, but instead constitutes a negotiable procedure under section 7106(b)(2).

The Agency also argues that the proposal conflicts with its right to determine the technology, methods and means of performing its work under section 7106(a)(1) of the Statute. We find that the proposal does not concern the technology, methods and means of performing work pursuant to section 7106(b)(1) of the Statute.

It does not appear from the plain wording of the proposal, and the Agency has not shown, that the proposal would interfere with the Agency's right to determine the technology used in the performance of its work. 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 through 12). We also find that there is no evidence that the proposal would interfere with the Agency's decisions as to the methods and means of performing its work. The Agency has not shown how notifying the Union of the listed incidents would interfere with the way it performs its work, or its discretion to determine the instrumentalities, agents, tools, devices, measures, plans or policy which will be used to accomplish its work. See, for example, National Treasury Employees Union and Internal Revenue Service, 27 FLRA 460, 463 (1987).

The Agency also argues that the proposal conflicts with its right to contract out security functions and the methods utilized by contractors to carry out that function. Proposal 8 requires the Agency only to notify the Union of the listed incidents. The proposal does not specify how the Agency should implement its security practices and we fail to see, therefore, how the proposal interferes with the Agency's right to contract out its security functions. As discussed above, the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet its burden acts at its peril. The Agency has failed to establish that the proposal interferes with its right to contract out. Consequently, we reject the Agency's argument that Proposal 8 violates this right.

The Agency also contends that Proposal 8 interferes with its right to direct employees and assign work. However, the Agency has provided no reasons to support this contention and none are apparent to us. As already mentioned, the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. Here, the Agency has not met that burden. Consequently, we reject the Agency's contention.

Because Proposal 8 does not interfere with any management right, we find that it is negotiable. In view of this finding, it is unnecessary to determine whether Proposal 8 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

VII. Proposal 11

Security Alerts shall be issued by desk-top distribution within 48 hours to bargaining unit employees for incidents at or in parking areas in close proximity to EPA Headquarter facilities which involve:

(1) armed robberies

(2) assaults (simple or aggravated)

(3) murder (attempted or actual)

(4) rape (attempted or actual)

(5) shootings (attempted or actual)

(6) stolen automobiles

(7) abduction (attempted or actual)

The Security Alerts shall also be posted on all lockable bulletin boards within 48 hours of the incident.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 11 is nonnegotiable because it interferes with management's rights to: (1) determine its internal security practices under section 7106(a)(1) of the Statute; (2) determine the technology, methods and means of performing its work of safeguarding Agency property under section 7106(b)(1); (3) contract out security functions under section 7106(a)(2)(B); and (4) direct employees and assign work under section 7106(a)(2)(A) and (B). The Agency asserts that the proposal does not constitute a procedure or an appropriate arrangement under section 7106(b)(2) and (3) of the Statute. The Agency also contends that the proposal relates to actions outside its control that do not pertain to conditions of employment of unit employees.

The Agency further asserts that Proposal 11 requires it to disclose information which would give the Union access to management's internal decision-making process involving decisions to take certain actions under section 7106. The Agency claims that such disclosure is prohibited by law under section 7114(b)(4) of the Statute.

2. Union

The Union contends that the intent of Proposal 11 is to provide "timely information" to employees concerning certain crimes that have taken place "at EPA headquarters facilities or in the nearby parking areas." Response at 16 and 20.

The Union asserts that Proposal 11 concerns a condition of employment and does not conflict with the management rights asserted by the Agency, but rather constitutes a procedure under section 7106(b)(2) of the Statute. With respect to the Agency's claim that the proposal interferes with its internal security practices, the Union states that the Security Alerts are informational publications designed to communicate with employees and are not a part of the Agency's internal security practices.

The Union contends that the proposal, by requiring the issuance of the alerts within 48 hours, would not "prevent the Agency from implementing and/or changing any internal security practice." Id. at 16. The Union asserts that the information it seeks to have distributed to unit employees does not concern "any internal management deliberations," but rather concerns "information on violent crimes." Id. at 20. According to the Union, the "information is public; a crime report appears each week in the Washington Post." Id. The Union, therefore, contends that the information sought by Proposal 11 is not prohibited by sections 7106(a)(1) or 7114(b)(4) of the Statute.

B. Analysis and Conclusion

Security Alerts are issued by the Agency to inform employees of specific incidents, such as assaults, thefts and robberies, that have occurred at or near the Agency's facilities. See Petition, Enclosure 16. The Alerts also offer reminders and guidance to employees as to available protections and precautions. Id., Explanation of Proposal 11. The Alerts are now available at the security guards' desks and on some locked and unlocked bulletin boards. Id.

The Agency contends that the proposal interferes with management's right to determine its internal security practices. As noted earlier, 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. 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. National Treasury Employees Union, Chapter 153 and Department of the Treasury, U.S. Customs Service, Region II, 21 FLRA 841 (1986). Where an agency shows a link or reasonable connection between its goal of safeguarding personnel or property and its practice or decision designed to implement that goal, a proposal that substantively interferes with or negates the agency's practice or decision conflicts with the agency's right under section 7106(a)(1). See Fort Benjamin Harrison, 32 FLRA at 993; Air Force Logistics Command, 30 FLRA at 1028.

Proposal 11 requires the Agency to issue Security Alerts to employees within 48 hours of incidents occurring at or near the Agency's Headquarters facilities involving robberies, assaults, murders, rapes, shootings, stolen automobiles, and abductions. The proposal requires that these Alerts be distributed by desk-top distribution and also be posted on all lockable bulletin boards. The Alerts are now available at security guards' desks and on some locked and unlocked bulletin boards.

We find that the Agency's issuance of the Security Alerts relates to the notification of employees as to matters concerning their conditions of employment, rather than the Agency's determination of its internal security practices. The Agency has not established any link between the notification requirement of the proposal and the Agency's internal security practices.

As noted, Proposal 11 would require the Agency to notify employees of crimes involving armed robberies, assaults, murders, rapes, shootings, stolen automobiles, and abductions which occur at or near the Agency's facilities. The Agency has not shown that the information addressed by the Union's proposal is privileged or confidential or that release of the information to employees in any manner relates to its determination of its internal security practices. The Agency also has not shown that the requirement that the information be released within 48 hours has any connection to the Agency's plan to protect its personnel, property, or operations. In these circumstances, we find that Proposal 11, requiring the Agency to notify employees of incidents affecting their safety, does not concern the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. See EPA, 35 FLRA at 717-18.

Because we conclude that the Agency has failed to demonstrate a connection between its decision to provide employees with information concerning incidents at or near its facilities and its goal of safeguarding Agency personnel, property, or operations, we find that the question of whether Proposal 11 directly interferes with management's right to determine its internal security practices under section 7106(a)(1) does not arise.

The Agency also contends that Proposal 11 interferes with its rights to determine the technology, methods and means of performing work, to contract out, to direct employees, and to assign work under section 7106 of the Statute. As with Proposal 8, the Agency has provided nothing in the record to show the manner in which Proposal 11 would interfere with these rights nor are there any reasons apparent to us. Therefore, we reject the Agency's contentions that Proposal 11 interferes with these rights.

As to whether Proposal 11 conflicts with section 7114(b)(4) of the Statute, we find that because section 7114(b)(4) applies to the disclosure of information by an agency to a union, it does not apply to Proposal 11, which requires the disclosure of information by the Agency to its employees. Compare National Treasury Employees Union and Department of Energy, 22 FLRA 131, 134 (1986) (section 7114(b)(4) does not preclude the negotiation of additional contractual requirements for an agency to provide information to a union, insofar as those contractual requirements are otherwise consistent with law).

Consequently, we conclude that Proposal 11 is negotiable.

VIII. Proposal 12

EPA should begin an aggressive campaign to prevent theft of personal property and to apprehend suspects or take action to determine the perpetrator if a theft occurs at EPA Headquarters facilities. The Union should be consulted on campaign approach and implementation.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 12 is nonnegotiable because it interferes with management's rights to:

(1) determine its internal security practices under section 7106(a) of the Statute; (2) determine the technology, methods and means of performing its work of safeguarding Agency property under section 7106(b)(1); (3) contract out security functions under section 7106(a)(2)(B); and (4) direct employees and assign work under section 7106(a)(2)(A) and (B). The Agency asserts that the proposal does not constitute a procedure or an appropriate arrangement under section 7106(b)(2) and (3) of the Statute. The Agency also contends that the proposal relates to actions outside its control that do not pertain to conditions of employment of unit employees.

2. Union

The Union claims that Proposal 12 is intended to require that "the Agency initiate efforts to prevent thefts in EPA headquarters facilities and see that suspects are apprehended and arrested." Response at 21. The Union argues that more aggressive action by the Agency is necessary because of the frequency of thefts at EPA Headquarters' facilities. The Union claims that the details of this effort would be at the discretion of the Agency.

The Union asserts that Proposal 12 concerns a condition of employment that is within the Agency's control. With respect to the Agency's claim that the proposal interferes with its right to determine its internal security practices, the Union argues that the proposal does not dictate in any manner the actions to be taken. The Union contends that the proposal does not interfere with management's right to determine the technology, methods and means of performing work because "preventing thefts and apprehending suspects" is not integrally related to the Agency's mission. Response at 22. The Union also contends that the proposal does not interfere with management's right to contract out because it "does not concern whether security functions are contracted out, the choice of contractors, or the methods employed by such contractors." Id. at 23. The Union argues that the proposal is consistent with the rights to assign work and direct employees because it does not require that any specific action be performed by any particular individual. Finally, the Union claims that workplace security is a condition of employment.

B. Analysis and Conclusion

In EPA, 35 FLRA at 713, the Authority found that management's right to determine its internal security practices under section 7106 does not extend to the protection of employees' personal property. The Authority determined that "[m]anagement's interest in protecting employees' personal property is distinguishable from management's interest in protecting its own property, personnel or operations." Id. at 715. The Authority found that management's interest in protecting its own property, personnel or operations is related to preserving or facilitating its ability to conduct its mission and functions and to providing effective and efficient Government. Conversely, the Authority determined that protecting employees' personal property is principally related to the working conditions of employees and not to the internal security practices of the Agency. Id.

Proposal 12 is limited to requiring the Agency to take measures to prevent the theft of personal property. In view of this limitation and based on the reasoning set forth above, we find that the proposal is related to the working conditions of employees and does not interfere with management's right to determine its internal security practices.

In support of the contention that Proposal 12 conflicts with the right to determine the technology, methods and means of performing work, the Agency asserts only that Proposal 12 interferes with its work "of safeguarding Agency property . . . ." Statement at 10. As noted above, Proposal 12 is limited to addressing measures concerning the theft of personal property. Proposal 12 does not concern the safeguarding of Agency property. Therefore, we reject the Agency's contention that the proposal conflicts with section 7106(b)(1). See EPA, 35 FLRA at 716.

The Agency provides no reasons that would support a conclusion that Proposal 12 interferes with its rights to contract out, assign work, and direct employees and none are otherwise apparent. Consequently, we reject these Agency arguments.

We conclude, therefore, that Proposal 12 is negotiable.

IX. Proposal 18

EPA shall significantly reduce the number of false fire alarms due to testing of the alarm system or repairs to fuse boxes at Headquarter facilities during work hours by restricting these repairs to weekends or after work hours.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 18 is nonnegotiable because it interferes with management's rights to: (1) determine its internal security practices under section 7106(a)(1) of the Statute; (2) determine the technology, methods and means of performing its work of safeguarding Agency property under section 7106(b)(1); (3) direct employees and assign work under section 7106(a)(2)(A) and (B). The Agency asserts that the proposal does not constitute a procedure or an appropriate arrangement under section 7106(b)(2) and (3) of the Statute.

2. Union

The Union states that Proposal 18 concerns the number of false fire alarms caused by the testing and repairing of the alarm system during work hours. It claims that this reduces unit employees' responsiveness to the alarm system in the event of an actual fire.

The Union takes the position that Proposal 18 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute for employees adversely affected by the exercise of management's right.

In weighing the competing needs of employees and managers under the "excessive interference" test set forth in Kansas Army National Guard, the Union argues that: (1) employees are adversely affected because the number of false alarms cause a slow responsiveness by employees that threatens the safety of employees on the job; (2) employees have no control over whether and/or when the alarm system is tested or the fuse box worked on; (3) the Agency's security objective is promoted by increasing the responsiveness of employees to fire alarms; (4) the negative impact on management's rights to test the alarm or work on the fuse box is outweighed by the beneficial consequences for employee safety; and (5) the effect of the proposal in minimizing unnecessary disruptions and increasing employees' responsiveness promotes effective and efficient Government operations.

B. Analysis and Conclusion

The Union's proposal requires only that the Agency test and repair the fire alarm system after hours or during weekends in order to avoid false fire alarms. Even assuming that the Agency's use of a fire alarm system constitutes an element of its plan to protect its personnel and property against the hazards of a fire in the workplace, we find that the requirement of Proposal 18 that the testing of that system be confined to the weekend or to a period after work hours does not directly interfere with management's right to determine its internal security practices.

The proposal does not require the use of fire alarms and it does not dictate to the Agency how the fire alarms which have already been installed will be employed by the Agency as a part of its internal security plan. The proposal concerns the maintenance of the system which the Agency adopted and restricts to nonwork periods any repairs or any tests performed to ensure that the system is working properly. Because Proposal 18 does not prescribe the elements of the Agency's internal security plan, but only concerns the maintenance of an element of the plan already adopted by the Agency, we conclude that the proposal does not directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. Proposal 18, therefore, is negotiable.

The Agency's assertion that Proposal 18 directly interferes with its rights to assign work and direct employees lacks merit. The Agency does not explain and it is not apparent how the proposal would interfere with its ability to assign work or provide direction and supervision to its employees. See EPA, 35 FLRA at 710.

To the extent that the proposal prescribes when the work of testing and repairing the system will be performed, the record supports the conclusion that Proposal 18 concerns the Agency's discretion in dealing with the building owners. According to uncontroverted information submitted by the Union, the Agency conducts fire drills in coordination with the building owners. Repairs to the building and to systems that are attached to the building are made by the building owners at the request of the Agency. Some of those repairs have been made during work hours as well as after regular hours. Petition, Enclosure 14. Inasmuch as repairs to the building and its systems are the responsibility of the building owners, we conclude that the testing of the fire alarm system to ensure its proper functioning is also their responsibility. Because the building owners are responsible for the repair and testing of fire alarm equipment, we find that the Union's proposal does not concern when the work of Agency employees will be performed.

We have consistently held that an agency is obligated to bargain to the extent that it has discretion to bargain on otherwise negotiable matters. See American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477, et al. and Library of Congress, Washington, D.C., 7 FLRA 578, 585-86 (1982), enforced sub nom. Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983). There is nothing in the record in this case which indicates that the Agency lacks discretion to request that the building owners test and repair alarm systems outside normal working hours. Therefore, the Agency is obligated to bargain to the extent it has discretion, unless this proposal is nonnegotiable for other reasons.

The Agency does not explain and it is not apparent how Proposal 18 would interfere with the Agency's right to determine the technology, methods and means of performing work and with its right to contract out security functions. As previously noted, a party failing to meet its burden acts at its peril.

Accordingly, we conclude that Proposal 18 is negotiable.

X. Proposal 19

EPA shall test the loud speakers, at least semi-annually, and fire alarms, as required by law, regulation or ordinance, at Waterside Mall and any other applicable Headquarter facility and provide such test results to the Union within 48 hours after completion of the test.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 19 is nonnegotiable because it interferes with management's rights to:
(1) determine its internal security practices under section 7106(a)(1) of the Statute; (2) determine the technology, methods and means of performing its work of safeguarding Agency property under section 7106(b)(1); (3) contract out security functions under section 7106(a)(2)(B); and (4) direct employees and assign work under section 7106(a)(2)(A) and (B). The Agency asserts that the proposal does not constitute a procedure or an appropriate arrangement under section 7106(b)(2) and (3) of the Statute.

The Agency further asserts that Proposal 19 requires the release of test result information relating to internal security practices that interjects the Union into management's internal deliberative process. The Agency claims that such a release interferes with its right to take certain actions under section 7106 of the Statute.

2. Union

The Union contends that the intent of Proposal 19 is to protect the safety of employees by notifying the Union of the results of the tests. The Union claims that loud speakers can be used to announce messages to employees in emergency situations. Response at 26. The Union states that it needs the test results so that it can follow up on deficiencies noted in the reports. The Union claims that neither announcements on the loud speaker system nor the alarms are audible in certain locations. Petition, Explanation of Proposal 19.

As it argued with respect to Proposals 8, 11 and 12, the Union contends that Proposal 19 does not: (1) interfere with the Agency's internal security practices; (2) involve the technology, methods and means of performing work; or (3) interfere with the Agency's right to contract out. The Union also argues, as it has with respect to other proposals, that the release of information required by Proposal 19 is not prohibited by law and does not involve the internal deliberations of the Agency.

The Union asserts that Proposal 19 is essentially the same as Proposal 5 in National Federation of Federal Employees, Local 2052 and Department of the Interior, Bureau of Land Management, Boise District Office, 30 FLRA 797 (1987) (Boise District Office). Proposal 5 in that case provided for quarterly safety inspections of the workplace and for copies of reports on those safety inspections to be provided to the union. The Union in this case argues that the tests required by Proposal 19 constitute safety inspections of equipment used to warn employees in case of an emergency safety hazard. It takes the position that Proposal 19 should be found negotiable based on Boise District Office.

B. Analysis and Conclusion

Proposal 19 requires the Agency to test loud speakers semi-annually and fire alarms as required by law, regulation or ordinance. The Union states that the Agency maintains loud speakers in some of its headquarters facilities and the loud speakers are used to announce messages to employees that "concern the safety of employees in emergency situations." Response at 26. The Union also states that the fire alarms are used "to warn building occupants to evacuate in the event of a fire." Id. We conclude, therefore, that the Agency's fire alarm and public address systems are used as a part of the Agency's plan to protect its personnel against hazards in the workplace.

However, we find that the requirement in Proposal 19 that those systems be tested and that reports of those tests be provided to the Union does not directly interfere with management's right to determine its internal security practices. The proposal does not require the Agency to use a fire alarm or public address system and it does not prescribe how those systems, once installed by the Agency, will be used. The proposal does not affect the way in which those systems function as a part of the Agency's internal security plan. The proposal simply requires that the system already established by the Agency be tested to ensure that it is functioning properly.

As to the requirement in Proposal 19 that the Agency report to the Union on the results of tests on the fire alarm and public address systems, we find that this aspect of the proposal also does not directly interfere with management's right under section 7106(a)(1). The proposal does not require the Agency to adopt any new security practices or modify any existing practices based on the results of the tests. The decision as to any measures which would be needed to repair or improve the functioning of those systems would remain with the Agency. Consequently, we conclude that the requirement that management notify the Union as to the results of tests on the fire alarm and public address system is in no manner determinative of the Agency's internal security practices and, therefore, that the proposal does not directly interfere with management's right under section 7106(a)(1) of the Statute.

The Agency claims that the proposal interferes with management's rights to determine the technology, methods and means of performing work, to direct employees, to assign work, and to contract out and that the proposal interjects the Union into management's decision-making process. The Agency provides no demonstration as to how the proposal relates to the exercise of those rights or how it would affect their exercise. Even assuming that "safeguarding Agency property" constitutes "performing the Agency's work" within the meaning of section 7106(b)(1) of the Statute, the proposal does not affect the Agency's decision as to the technological systems or the equipment it will use for safeguarding its property.

The Agency does not explain and it is not apparent how the proposal would affect management's ability to assign work or to provide direction or supervision to its employees. The proposal does not require the Agency to assign the responsibility for testing the systems to any particular individual or position and thus does not interfere with the right to assign work. See EPA, 35 FLRA at 710. The proposal does not require the Agency to contract out the responsibility for testing or otherwise prescribe criteria for contracting out Agency functions. Id. at 709. The requirement that the Agency report the results of tests to the Union does not impermissibly interject the Union into the Agency's decision-making process. See Boise District Office, 30 FLRA at 805-06. In short, there is no basis in the record for concluding that Proposal 19 would directly interfere with the rights enumerated above. Consequently, we conclude that Proposal 19 is negotiable.

XI. Proposal 22

The Union should be notified within 24 hours of any bomb threats received by EPA and EPA's reason for not evacuating the premises if it decides not to.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 22 is nonnegotiable because it interferes with management's rights to:
(1) determine its internal security practices under section 7106(a) of the Statute; (2) determine the technology, methods and means of performing its work of safeguarding Agency property under section 7106(b)(1); (3) contract out security functions under section 7106(a)(2)(B); and (4) direct employees and assign work under section 7106(a)(2)(A) and (B). The Agency asserts that the proposal does not constitute a procedure or an appropriate arrangement under section 7106(b)(2) and (3) of the Statute. The Agency also contends that the proposal relates to actions outside its control that do not pertain to conditions of employment of unit employees.

2. Union

According to the Union, Proposal 22 addresses a workplace safety issue. The Union states that the proposal is intended to require the Agency to notify it of any bomb threats and to explain why the building was not evacuated so that the Union may make suggestions to the Agency for the future or formulate additional impact bargaining proposals.

The Union asserts that the threat of a bomb presents a hazard to employees on the job and constitutes a condition of employment because it pertains to employees' safety in the workplace. The Union argues, as it did in Proposal 8, that although the Agency maintains that Proposal 22 interferes with certain management's rights, it has failed to meet its burden of proving that Proposal 22 relates to internal security practices or any other management right cited by the Agency.

B. Analysis and Conclusion

It is clear that the Agency's policies for dealing with bomb threats concern the manner in which the Agency plans to respond to and protect against the potential harm and damage to its personnel and property which could result from the explosion of a bomb at the worksite. The Agency's decision as to the measures it will take to deal with bomb threats, therefore, constitutes its determination of an aspect of its internal security practices. We find, however, that Proposal 22 does not directly interfere with the Agency's determination of its internal security practices.

Proposal 22 requires the Agency to notify the Union within 24 hours after a bomb threat and to provide reasons which explain any decision not to evacuate Agency facilities. The proposal does not prescribe any actions which the Agency must take to deal with bomb threats and it would not preclude the Agency from changing existing policy. The proposal requires only that the Union be informed of the threat after it has been made. The Agency has not demonstrated how notifying the Union and providing reasons after the fact would prevent the Agency from being able to deal with the threat.

Proposals which merely require management to notify the union of matters pertaining to the conditions of employment of unit employees and which also relate to the exercise of management's rights constitute negotiable procedures under section 7106(b)(2) of the Statute. See Defense Language Institute, 29 FLRA at 70-71 and cases cited therein. See also Proposal 8 above. Consequently, because the proposal requires only that the Agency notify the Union within 24 hours of any bomb threat and provide reasons for any decision not to evacuate the building, and it has not otherwise been demonstrated that the proposal would interfere with management's right under section 7106(a)(1), we find, consistent with Defense Language Institute, that Proposal 22 is a negotiable procedure under section 7106(b)(2) of the Statute.

The Agency asserts Proposal 22 interferes with its rights to determine the technology, methods and means of performing work, to contract out, or to direct employees and assign work. The Agency provides no demonstration as to how the proposal relates to the exercise of those rights or how it would affect them. In our opinion, there is no basis otherwise apparent in the record for concluding that Proposal 22 would interfere with those rights. Consequently, we find that Proposal 22 is negotiable.

XII. Proposal 24

EPA shall sign for courier packages at the main entrances to prevent entry of unauthorized or dangerous personnel onto the premises at EPA Headquarter facilities.

A. Positions of the Parties

1. Agency

The Agency contends that the proposal is nonnegotiable because it interferes with management's rights to: (1) determine its internal security practices; (2) determine the technology, methods and means of performing its work of safeguarding Agency property; (3) contract out security functions and the methods utilized by contractors to carry out security functions; and (4) direct employees and assign work. The Agency asserts that the proposal does not constitute a procedure or an appropriate arrangement under section 7106(b)(2) and (3) of the Statute.

2. Union

The Union contends that Proposal 24 is similar to Proposal 2 in EPA and, therefore, incorporates the Union's arguments in that case. The Union states that the proposal applies "to all courier packages for bargaining unit employees," and "simply requires EPA management to sign for the courier packages at the main entrances to prevent entry of unauthorized or dangerous personnel" onto the premises of the Agency's facilities. Petition, Explanation of Proposal 24. According to the Union, the Agency already maintains guard desks, which are used by all couriers, at the main entrances of its buildings. The Union contends that the proposal would not change this arrangement. The Union asserts that the proposal merely establishes a procedure to be followed when couriers deliver materials to bargaining unit employees.

The Union further contends that the proposal does not interfere with the Agency's rights to: (1) determine the technology, methods and means of performing work; (2) direct employees and assign work; or (3) contract out work. The Union also asserts that Proposal 24 is negotiable under section 7106(b)(3) as an appropriate arrangement.

Applying the analysis in Kansas Army National Guard, the Union contends that employees are adversely affected by the Agency's practice of "allowing couriers and others to roam the hallways at will" which "has created hazards of assault and theft." Union's Response to Agency's Statement of Position in EPA at 7. The Union asserts that employees have been subjected to thefts of their personal property and assaults at their worksites. One Agency employee was killed in her office "by an outsider who had no business being in the workplace." Id. at 8. Consequently, the Union argues, employees, who have no control over access to the workplace, "feel threatened on the job." Id. The Union acknowledges that the proposal affects the Agency's right to determine its internal security practices by requiring couriers' deliveries to employees to be made at the guards' desk rather than directly to employees. Id. at 8-9. However, the Union contends that the impact on management's right is "minimal" compared to the benefits to employees of being protected from threats to their persons and property. Id. at 9. Finally, the Union asserts that the proposal will benefit effective and efficient Government by improving employees' morale and reducing the liability which the Agency could incur as a result of thefts and assault on employees. Id. at 9-10.

B. Analysis and Conclusion

1. The Proposal Interferes with the Agency's Right to Determine its Internal Security Practices

In EPA, we found that Proposal 1 directly interfered with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. The proposal required that packages being delivered to Agency employees by couriers be left at the guards' desk in the Agency facilities rather than being delivered directly to employees. We concluded that the proposal would require the Agency to adopt a particular practice to safeguard, among other things, its personnel. Consequently, we concluded that the proposal would impose an internal security practice on the Agency and, therefore, was outside the duty to bargain.

Proposal 24 in this case is substantially similar to Proposal 1 in EPA. Proposal 24 requires management to sign for courier packages for bargaining unit employees at the main entrances in order to prevent entry of unauthorized or dangerous personnel into the Agency's facilities. Proposal 24 merely expands the procedure for management's receipt of courier packages found negotiable in EPA by requiring that management sign for the packages. Proposal 24, like Proposal 1 in EPA, would require the Agency to adopt a particular practice to safeguard its personnel. Because the proposal would impose an internal security practice on the Agency, it directly interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.

We further find, contrary to the Agency's position, that Proposal 24, which only requires that management have someone sign for packages at the main entrances of its facilities, does not interfere with the Agency's right to determine the technology, methods and means of performing its work. Proposal 24, like Proposal 1 in EPA, imposes no requirements on management with respect to the technology or methods and means used to perform its work.

The Agency contends that the proposal interferes with its rights to direct employees, to assign work, and to contract out work. The Agency's arguments in support of these contentions are similar to the arguments it presented with respect to Proposal 1 in EPA. In that case, the Authority determined that the Agency had not demonstrated that the proposal interfered with any of these rights. We find, for the reasons expressed in EPA, that the proposal in this case does not interfere with the Agency's right to direct employees, to assign work or to contract out.

We turn next to the Union's contention that Proposal 24 constitutes a negotiable procedure under section 7106(b)(2). A proposal that directly interferes with a management right does not constitute a negotiable procedure under section 7106(b)(2). See Department of Defense v. FLRA, 659 F.2d at 1150-52. Proposal 24 directly interferes with the Agency's right to determine its internal security practices by imposing a particular internal security practice on the Agency. The proposal, therefore, does not constitute a negotiable procedure.

2. Proposal 24 Is an Appropriate Arrangement Under Section 7106(b)(3)

Having determined that Proposal 24 conflicts with management's right to determine its internal security practices under section 7106(a)(1) of the Statute, we next decide whether the proposal constitutes an appropriate arrangement under section 7106(b)(3).

The Union contends that Proposal 24 is intended to protect employees by requiring management to sign for courier packages at the main entrances in order to prevent the entry of unauthorized or dangerous individuals. Based on the Union's statement as to the intent of the proposal, we conclude that the proposal would address the adverse effect of the Agency's policies governing access to its facilities. Permitting access, with few limitations, to Agency facilities by nonemployees increases the risk to employees and to Agency property of injury or theft as a result of the actions of those gaining access. We find, therefore, that the proposal is an "arrangement" for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3).

We next consider whether Proposal 24 is an "appropriate" arrangement. According to information submitted by the Union, which was not disputed by the Agency, employees have been subject to a number of thefts and assaults in and around Agency facilities in the recent years. According to an Agency Headquarters Security Bulletin (August 1988), criminals who "roam the corridors of . . . office buildings" sometimes disguised as "repairmen, telephone technicians or maintenance workers" are suspected of being responsible for theft problems. Petition, Enclosure 14. Clearly, thefts of personal property and assaults occurring at the workplace have a significant negative impact on employees who have little, if any, control over who is allowed to enter the Agency's facilities.

The proposal affects the Agency's right to determine its internal security practice by requiring management to institute a practice of signing for courier packages at the main entrances rather than allowing delivery of the packages directly to employees. Although the proposal appears to require that management will use existing guards at the guard desks to implement the proposal, the proposal does not specify who would be responsible for performing the task of signing for the packages. Decisions as to the specific personnel who will be required to sign for the packages is left to management's discretion. Because the Agency is afforded broad discretion to implement the proposal, we find that the burden imposed on management by the proposal is minimal.

On the other hand, the proposal would offer significant benefit to employees. Limiting access to the Agency's facilities would tend to improve employees' sense of security in the workplace by alleviating their fear that unauthorized individuals could enter their work areas. Limiting access to the premises could also lead to a reduction in the number of incidents, such as thefts and assaults, which have occurred at the worksites involved. We conclude, therefore, that on balance the benefit to employees outweighs the burdens placed on the Agency. Consequently, we find that Proposal 24 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.

XIII. Order

The Agency shall upon request, or as otherwise agreed to by the parties, negotiate concerning Proposals 1, 8, 11, 12, 18, 19, 22, and 24.⁽⁴⁾ The petition for review is dismissed as to Proposal 5.

---

---

---

FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Union has withdrawn its appeal as to Proposals 3, 9, 15, 17, 20, 21, and 23. See Union's Response to Agency's Statement of Position (Response) at 5, 15, 24, 29 and 31. Accordingly, we will not consider these proposals. In its Statement of Position, the Agency lists the proposals that it considers to be in dispute. Agency's Statement of Position (Statement) at 1. That list does not contain Proposals 2, 4, 6, 7, 10, 13, 14, and 16. We conclude, therefore, that the Agency has withdrawn its allegation of nonnegotiability as to those proposals and we will not consider them.

2. The Union first raised the applicability of section 7106(b)(3) in its response to the Agency's Statement of Position. In such circumstances in the past, the Authority has granted agency requests to supplement statements of position in order to address the 7106(b)(3) contentions. See, for example, American Federation of Government Employees, AFL-CIO, Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia, 29 FLRA 1587 n.1 (1989), petition for review filed as to other matters sub nom. U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia v. FLRA, No. 88-8006 (11th Cir. Jan. 5, 1988). Here, the Agency made no request to supplement its Statement of Position.

3. Subsequently remanded as to other matters by Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois v. FLRA, No. 88-1239 (D.C. Cir. May 25, 1988) (order), decision on remand, 33 FLRA 436 (1988), rev'd in part and remanded as to other matters sub nom. Department of the Army, U.S. Army Aberdeen Proving Ground Installation Support Activity v. FLRA, 890 F.2d 467 (D.C. Cir. 1989), decision on remand, 35 FLRA 936 (1990).

4. In finding that these proposals are negotiable, we make no judgment as to their merits.

---