[ v38 p1389 ]
38:1389(109)NG
The decision of the Authority follows:
38 FLRA No. 109
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
LOCAL 2058
(Union)
and
U.S. DEPARTMENT OF THE ARMY
ABERDEEN PROVING GROUND SUPPORT ACTIVITY
ABERDEEN PROVING GROUND, MARYLAND
(Agency)
0-NG-1703
DECISION AND ORDER ON NEGOTIABILITY ISSUES
January 11, 1991
Before Chairman McKee and Members Talkin and Armendariz.(1)
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute).
Proposal 1 provides that: (1) employees will be assigned to shifts fixed by the Agency and will have rotating days off; (2) employees' schedules will be arranged so that the employees work not more than a stated number of consecutive workdays in one administrative workweek; and (3) exceptions in regard to days off may be made either by agreement between the employee and the employer or in accordance with 5 C.F.R. §§ 610.111 and 610.121. Proposal 2 provides that employees' post and patrol assignments are to be posted prior to the beginning of the administrative workweek unless there is an unforeseen emergency.
For the reasons which follow, we find that Proposal 1 is negotiable and Proposal 2 is negotiable, in part, and nonnegotiable, in part.
II. Proposal 1
Guard employees will be assigned to one of the fixed shifts and will have rotating days off, i.e., regular days off will be Tuesday/Wednesday one week, Wednesday/Thursday the next week, etc. The schedules will be arranged to provide not more than 6 consecutive workdays with not more than 5 consecutive workdays in any one administrative workweek with 2 consecutive days off.
Exceptions in regard to days off may be made at the request of the employee and with approval of the employer or in accordance with 5 CFR 610.111 and 610.121.
A. Positions of the Parties
1. The Agency
The Agency states that the proposal prohibits rotating shifts and prescribes the weekly tour of duty that must be established. The Agency argues that "[i]mplementation of this proposal would prohibit management from assigning employees to an unvarying standard workweek of five-on, two-off." Agency's Statement of Position at 2. Because the proposal prevents the Agency from assigning employees to anything but a fixed tour of duty and to a five-on, two-off duty week, the Agency contends that the proposal interferes with its right under section 7106(b)(1) to determine the numbers, types, and grades of employees assigned to a tour of duty, and, therefore, is negotiable only at management's election. Id. at 3.
To support this argument, the Agency cites Department of the Air Force, Scott Air Force Base, Illinois, 33 FLRA 532 (1988) (Scott Air Force Base), affirmed on other grounds sub nom. National Association of Government Employees, Local R7-23 v. FLRA, 893 F.2d 380 (D.C. Cir. 1990). According to the Agency, the Authority held in that case that "a tour of duty is the hours of a day . . . and the days of an administrative workweek" and that "[c]hanges in employees' tour[s] of duty affect the numbers, types and grades of employees assigned to a tour of duty within the meaning of section 7106(b)(1) of the Statute[.]" Id. at 2-3. The Agency further states that it "wishes to maintain its flexibility to assign a standard unvarying workweek . . . or a six day workweek[.]" Id. at 3. Because it has chosen "not to negotiate the weekly tour of duty" and "not to negotiate away its discretion to assign employees to rotational shift assignments[,]" the Agency argues that the proposal is nonnegotiable. Id.
The Agency contends that the proposal's "exceptions to the leave provision[ ] are too restrictive" because they "constrict management's right to establish a different tour of duty to only those times when the restrictions of the C.F.R. could be met[.]" Id. The Agency also contends that Proposal 1 is nonnegotiable even though the parties' previous agreement contains language identical to Proposal 1.
2. The Union
The Union states that the proposal is intended "to guarantee employees of the Guard force two consecutive days off per administrative work week" and notes that the language of the proposal is identical to language in the parties' previous agreement. Union's Petition for Review at 2. The Union contends that the proposal does not prevent the Agency from determining the numbers, types, and grades of employees assigned to a tour of duty because the Agency "will continue to determine which work shifts are to be staffed, by what type and grade of positions, and how many of each type and/or grade are needed on a given shift." Union's Response at 2. The Union also contends that, while there "would be some restrictions in how and when guards would be assigned," the Agency's mission of providing security coverage at all times "would easily and certainly be met." Id. at 9.
The Union argues that the proposal is a procedure for the Agency to follow when assigning employees. The Union asserts that the Agency would be able to fulfill its security mission because the Agency "would be free to change the numbers assigned to any given shift" but that "all employees would be assured of working the same set work schedule each day of their work week, and having their two consecutive days off rotated." Id. at 3-4. According to the Union, the proposal would retain in the Agency the ability to "determine how many guards are needed, at which locations, and at which times[.]" Id. at 4.
The Union also argues that the proposal is an appropriate arrangement for employees adversely affected by the exercise of management's rights. Applying the factors outlined in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard), the Union argues that the proposal is an appropriate arrangement for the following reasons: (1) the proposal addresses the physical and psychological effects on employees whose "schedules vary from day to day and [whose] bodies are not able to become acclimated to a given wake/sleep schedule"; (2) employees have no control over the Agency's need to have guards on duty all day, every day, over the schedules of their families and friends, or over the physical and psychological effects of varying work schedules; (3) the proposal places no limits on the Agency's section 7106(a)(1) right to determine its mission or its section 7106(a)(2)(B) right to determine the personnel by which Agency operations will be conducted; (4) the proposal's effect on the Agency's right to determine the numbers, types, and grades of employees "would be minimal" because although the Agency "would not be able to assign employees to a tour that required working 8:00 AM to 5:00 PM one day and 11:00 AM to 8:00 PM the next[,]" the Agency would not be prevented from "assigning the number of guards it wishes to be on duty at any given place at any given time"; (5) the benefits to employees from having regular, fixed shifts and rotating days off will improve morale and productivity and will decrease absenteeism and leave usage; and (6) the proposal has no detrimental effect on the effective and efficient operation of the Government and the benefits of improved morale and productivity "will improve the effectiveness and efficiency of Government operations." Id. at 5-8.
The Union further argues that the exceptions contained in the proposal are not excessively restrictive. The Union notes that the Agency is bound by the provisions of 5 C.F.R. §§ 610.111 and 610.121 and that "it is not the proposal that places such restrictions on the Agency," but the regulations themselves. Id. at 10. In this regard, the Union states that "the Agency may institute different schedules[,]" that is, change its schedules, when the work schedules required by the proposal "would seriously handicap the Agency in carrying out its functions, or would substantially increase costs[.]" Id. at 11. Accordingly, the Union concludes that "the proposal carefully and specifically preserves this option" and "comports to the requirements of [the] Government-wide regulation." Id.
The Union also argues that, with respect to the limits placed on bargaining over tours of duty by Scott Air Force Base, "[t]he Agency would now have the Authority extend this decision so that any proposal that concerned a 'tour of duty' in virtually any way would be at most a permissive subject of bargaining." Id. at 12-13. The Union argues that when interpreting whether a proposal concerns a tour of duty, the Authority needs to "strike a more reasonable balance" between the Agency's need to efficiently and effectively accomplish its mission and "the need of employees to have some control over their work lives." Id. at 13.
The Union notes that, pursuant to 5 C.F.R. § 610.102(h), the Scott Air Force Base decision defined "tour of duty" to be "'the hours of day (a daily tour of duty) and the days of an administrative workweek (a weekly tour of duty) that constitute an employee's regularly scheduled administrative workweek.'" Id. at 11-12, quoting Scott Air Force Base, 33 FLRA at 541. The Union argues that although the Office of Personnel Management (OPM) defined the term "tour of duty" in 5 C.F.R. § 610.102(h), that "does not bind the Authority to use that same definition for purposes of collective bargaining" and that the Authority "should not feel bound by OPM's definition of 'tour of duty' and should pull back from the restrictions on bargaining made in the [Scott Air Force Base] decision." Union's Response at 14, 16.
B. Analysis and Conclusions
1. Proposal 1 Does Not Interfere With Management's Section 7106(b)(1) Right to Determine the Numbers, Types, and Grades of Employees Assigned to a Tour of Duty
Section 7106(b)(1) of the Statute states that the numbers, types, and grades of employees assigned to a tour of duty are negotiable only at the election of the agency. For the following reasons, we conclude that Proposal 1 does not interfere with the Agency's section 7106(b)(1) right to determine the numbers, types, and grades of employees assigned to a tour of duty and is negotiable.
An employee's tour of duty consists of the hours and the days of the week that the employee works. A decision as to what will constitute an employee's tour of duty is a decision by management as to when and where an agency needs employees to perform its work and thus, affects the numbers, types, and grades of employees assigned to a tour of duty. See Scott Air Force Base, 33 FLRA at 542. Proposals which do not directly interfere with management's rights, but which constitute procedures to be applied by management in the exercise of its rights, are negotiable under section 7106(b)(2) of the Statute. See, for example, National Federation of Federal Employees, Local 2099 and Department of the Navy, Naval Plant Representative Office, St. Louis, Missouri, 35 FLRA 362, 367-70 (1990).
The Agency in this case has determined that it needs security coverage by employees 24 hours a day, 7 days a week. See Union's Response at 9. The Union states that the proposal would not prevent the Agency from "assigning the number of guards it wishes to be on duty at any given place at any given time." Union's Response at 6-7. In our view, the Union's interpretation is not inconsistent with the wording of the proposal. As a result, Proposal 1 would allow the Agency to establish: (1) what times the shifts begin and end; (2) the number of employees it needs on each shift to fulfill its mission; (3) which days it needs employees to be on duty; and (4) the types and grades of employees it needs on each shift.
The proposal states that exceptions in regard to days off may be made in accordance with 5 C.F.R. §§ 610.111 and 610.121. While the Union states that the Agency "would not be able to assign employees to a tour that required working 8:00 AM to 5:00 PM one day and 11:00 AM to 8:00 PM the next[,]" the Union further states that "the Agency may institute different schedules" when the work schedules required by the proposal "would seriously handicap the Agency in carrying out its functions, or would substantially increase costs[.]" Union's Response at 6-7, 11. As these exceptions are the same as those in 5 C.F.R. § 610.121, we interpret this statement to mean that the Union does not intend for the proposal to prevent the Agency from making changes in employees' work schedules within the requirements of the applicable regulations.
The Agency argues that it "wishes to maintain its flexibility to assign a standard unvarying workweek . . . or a six day workweek" and that it has chosen "not to negotiate the weekly tour of duty" and "not to negotiate away its discretion to assign employees to rotational shift assignments[.]" Agency's Statement of Position at 3.
While the proposal precludes the Agency from changing employees' shift assignments once it has assigned employees to one of the fixed shifts, except as provided by 5 C.F.R. §§ 610.111 and 610.121, the proposal does not prevent the Agency from securing the coverage it deems necessary 24 hours a day, 7 days a week. The proposal limits only the Agency's ability to rotate individuals, not to determine the number of employees assigned to a particular tour of duty and what the work shifts will be. For example, the Agency retains the discretion to determine that it needs a certain number of GS-9 guards on a particular shift, but may not require a particular GS-9 guard to rotate among different shifts during the same administrative workweek. However, the Agency has not shown or even alleged that there are work-related distinctions between individual guards of the same type and grade which affect the assignment of those employees to a particular shift or a specific weekly tour of duty. Specifically, the Agency has not shown that it needs a particular GS-9 guard to work on a particular shift. See U.S. Department of Justice, 29 FLRA at 996. Accordingly, in the absence of a showing by the Agency that a particular GS-9 guard is more qualified than another GS-9 guard, it appears that all of the GS-9 guards are equally qualified. Further, as noted above, the proposal preserves the Agency's right to change employees' work schedules pursuant to 5 C.F.R. § 610.121, that is, when the head of the Agency determines that the Agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased.
This analysis also applies to the requirement that the Agency rotate the days when particular employees will be off. As with the requirement that employees be assigned to one of the fixed shifts, the requirement regarding days off is subject to the terms of applicable regulations and concerns only which individual guards will work on a given day. For example, the Agency is free to determine that it needs a GS-9 guard for a particular shift, but is limited from determining which days that employee will be off. However, because the Agency has not shown that it needs a particular GS-9 guard to work on a particular day, limiting its ability to rotate the days off of a particular GS-9 guard does not affect its section 7106(b)(1) right to have a specific number of GS-9 guards working on a particular tour of duty. Rather, rotating days off in this case involves only which employees will work on particular shifts and not how many employees will work on those shifts.
Accordingly, we conclude that Proposal 1 does not prevent the Agency from determining the numbers, types, and grades of employees assigned to particular tours of duty, but, instead, concerns the assignment of individual employees to particular fixed shifts during the administrative workweek.
We reject the Agency's assertion that the Authority's decision in Scott Air Force Base compels us to find Proposal 1 to be nonnegotiable. At issue in Scott Air Force Base was whether the agency had a duty to bargain over the substance of its decision to change the shift of the employee who operated the Battery Shop from 3:00 a.m. - 11:30 a.m. to 7:00 a.m. - 3:30 p.m. The Authority found that the agency's decision to change the employee's tour of duty resulted in a change in the numbers, types, and grades of employees assigned to a tour of duty because "it eliminated the existing tour and increased by one the number of employees on the 7:00 a.m. to 3:30 p.m. tour of duty" and, therefore, was negotiable only at the election of the agency. Scott Air Force Base, 33 FLRA at 544.
In Scott Air Force Base, bargaining over the change would have directly interfered with the agency's decision to operate its Battery Shop at the hours of its choice. Unlike Scott Air Force Base, the proposal in this case would preserve the Agency's discretion to establish tours of duty and would not interfere with the Agency's mission of securing coverage by employees 24 hours a day, 7 days a week. Also, the Agency in this case retains the ability to change the times of its shifts. For example, nothing in the proposal would prevent the Agency from changing its first shift from 8:00 a.m. - 4:30 p.m. to 7:30 a.m. - 4:00 p.m. Rather, the proposal would merely require that the particular employee assigned to that new shift not be assigned to the 4:00 p.m. - 12:30 a.m. shift in the same administrative workweek. As noted previously, such a requirement does not interfere with the Agency's right to determine the numbers, types, and grades of employees assigned to particular tours of duty.
This case is also distinguishable from our decision in National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392 (1990) (National Weather Service). In National Weather Service, we found that the agency's decision to change the starting and quitting times of the day shift determined the extent of the overlaps of the shifts and, thus, had the effect of determining the numbers of employees on duty at those times. Accordingly, we concluded that the agency's decision to change the day shift's starting time from 7:00 a.m. to 7:30 a.m. and the quitting time from 3:30 p.m. to 4:00 p.m. constituted an exercise of its right to determine the numbers of employees assigned to a tour of duty under section 7106(b)(1) of the Statute. See National Weather Service, 37 FLRA at 393, 400. Unlike National Weather Service, Proposal 1 does not preclude the Agency from changing the times of its shifts and, therefore, does not involve the Agency's right to determine the numbers, types, and grades of employees assigned to particular tours of duty.
Finally, we note the Agency's argument that it "wishes to maintain its flexibility to assign . . . a six day workweek[.]" Agency's Statement of Position at 3. To the extent that the Agency is arguing that the proposal limits its right to establish a 6-day workweek, including 1 day of regularly scheduled overtime, we reject that argument. The proposal states that exceptions to its requirements may be made in accordance with 5 C.F.R. § 610.111. That section allows an agency to establish a 6-day "regularly scheduled administrative workweek" consisting of a 5-day basic workweek plus 1 day of regularly scheduled overtime. 5 C.F.R. § 610.111(a)(2).
As the proposal allows the Agency to establish workweeks pursuant to applicable regulations, we find that the proposal preserves the Agency's ability to establish a 6-day workweek. Therefore, we find that the proposal does not directly interfere with the Agency's section 7106(b)(1) right to establish such a tour of duty. See Service and Hospital Employees International Union, Local 150 and Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA 521, 527-28 (1990) (Provision 3).
2. Proposal 1 Is Not Affected by a Recent United States Supreme Court Decision
Having found that Proposal 1 does not directly interfere with the Agency's right under section 7106(b)(1), we also reject the Agency's argument that the proposal's exceptions unreasonably restrict the Agency's right to establish a different tour of duty because they "constrict management's right to establish a different tour of duty to only those times when the restrictions of the C.F.R. could be met[.]" Agency's Statement of Position at 3.
We have already found that the proposal does not interfere with the Agency's right to determine the numbers, types, and grades of employees assigned to particular tours of duty because it concerns only management's decision as to which individual employee of a given type in a given grade would be on a specific shift. Further, we found that the proposal would apply only after the Agency had made determinations pursuant to its section 7106(b)(1) rights and, therefore, does not involve an exercise of those section 7106(b)(1) rights. Because the proposal concerns the assignment of individual employees to shifts and not matters subject to the Agency's exercise of its section 7106(b)(1) rights, the limited exceptions provided by the proposal for changes in those individual shift assignments are not restrictions on the exercise of a management right.
Moreover, to the extent that the first paragraph of the proposal may be interpreted as limiting the Agency's right to establish a 6-day workweek, we have found that by allowing exceptions to be made with respect to days off, the second paragraph of the proposal preserves the Agency's ability to establish such a tour of duty.
We note that this case is distinguishable from the U.S. Supreme Court's decision in Department of the Treasury, Internal Revenue Service v. FLRA, 110 S. Ct. 1623 (1990) (IRS v. FLRA). IRS v. FLRA involved, among other things, the issue of whether the exercise of a management right may be limited by a Government-wide regulation. The Court focused on the exercise of management rights and the interplay among various provisions of the Statute. More specifically, the Court discussed the relationship between the prefatory language in section 7106(a), providing that "nothing [in the Statute] shall affect the authority of any management official of any agency . . . in accordance with applicable laws[,]" and the exercise of a management right contained in section 7106(a)(2). Interpreting the wording of section 7106(a)(2) of the Statute, the Court concluded that:
The [Statute] does not empower unions to enforce all "external limitations" on management rights, but only limitations contained in "applicable laws." Or to put the point differently, there are no "external limitations" on management rights, insofar as union powers under § 7106(a) are concerned, other than the limitations imposed by "applicable laws."
IRS v. FLRA, 110 S. Ct. at 1628-29 (emphasis in original).
The dispute in this case does not involve the exercise of any of the management rights enumerated in section 7106(a) of the Statute. Rather, the dispute involves a matter falling within section 7106(b)(1) of the Statute. The prefatory language contained in section 7106(a), discussed by the Court, does not, by its terms, apply to section 7106(b)(1) of the Statute. Instead, the exercise of management rights contained in section 7106(a) is "[s]ubject to subsection (b) . . .[,]" which provides that "[n]othing in this section shall preclude any agency and any labor organization from negotiating" over the matters enumerated therein. Consequently, the Court's analysis, focusing solely on a right enumerated in section 7106(a)(2)(B), is not applicable to the resolution of the issues raised here. See U.S. Department of Justice, Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, 38 FLRA 701, 706-07 (1990). Accordingly, we do not need to reach the issues of whether management's section 7106(b)(1) rights may be restricted by 5 C.F.R. §§ 610.111 and 610.121, or whether 5 C.F.R. §§ 610.111 and 610.121 constitute "applicable laws."
For the foregoing reasons, we find that Proposal 1 is negotiable. Therefore, we need not address the Union's argument that Proposal 1 is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.
III. Proposal 2
Normally schedules reflecting employees' post and patrol assignments will be posted on applicable official bulletin boards seven (7) days in advance prior to the administrative workweek. Whenever management knows in advance that work requirements will differ in the next week from those required in the current workweek, management will make the schedule changes and inform the employees prior to the beginning of the administrative workweek of those changes. Only in the case of an unforeseen emergency will management deviate from this requirement.
A. Positions of the Parties
1. The Agency
The Agency contends that Proposal 2 violates its right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency states that it "has determined that advance notice of posts, partners, and patrols will hamper the safeguarding of personnel, property and the integrity of the installation" and that its policy of providing no such advance notice is a precautionary security measure designed "to safeguard the installation and its employees." Agency's Statement of Position at 4, 5.
The Agency argues that advance notice "would provide the guards with the opportunity to plan for the access to secured or restricted areas for non-authorized personnel" and that its current policy precludes "guards from participating or colluding with other guards in activities which could compromise the security of [Aberdeen Proving Ground]." Id. at 4. To support this argument, the Agency states that two guards were recently removed from Federal service for the "unauthorized removal and possession of Government property." Id. at 5. According to the Agency, "the advance notification of partner assignments and posts allowed these guards to plan this theft." Id. Therefore, the Agency contends that its "policy of not providing advance notice will reduce or eliminate any opportunity to plan improper actions on the part of the guards, thus, safeguarding the physical property of the installation." Id. The Agency notes that, according to Authority precedent, "[w]hether this plan will achieve [its] security goals or whether there is a better plan available should not be of material interest to the Authority in determining the negotiability of the proposal." Id., citing National Federation of Federal Employees, Local 29 and Department of the Army, Kansas City District, U.S. Army Corps of Engineers, Kansas City, Missouri, 21 FLRA 233, 235 (1986).
The Agency argues that the proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute because it prevents the Agency from implementing an "integral aspect" of its internal security program. Id. at 5. By prohibiting the Agency from issuing post, patrol, or partner assignments without advance notice, the Agency argues that the proposal excessively interferes with its right to determine its internal security practices and, therefore, is not an appropriate arrangement.
2. The Union
The Union intends for this proposal "to allow Guards to come to work better prepared for adverse conditions." Union's Petition for Review at 2. The Union states that the proposal is an appropriate arrangement for employees adversely affected by the exercise of management's rights and, therefore, is negotiable under section 7106(b)(3) of the Statute. Specifically, the Union contends that the proposal is a "reasonable accom[m]odation for employees who are placed in uncomfortable or dangerous situations" as a result of the Agency's exercise of its right to assign work. Union's Response at 17.
The Union asserts that the proposal is designed to provide the guards with notice of where they will be working so that they can prepare for the food and clothing they will need during their work shift and notes that the language of the proposal is identical to language in the parties' previous agreement.
The Union argues that the following analysis of the factors in Kansas Army National Guard weighs in favor of negotiability: (1) employees given outdoor assignments need advance notice of their posts to know whether to bring insect repellent, warm clothes, food, and drinking water; (2) employees have no control over where they are assigned, over where posts are located, or over the hazards of insects or the weather; (3) the Agency "offers no evidence or any other proof" that the proposal would excessively interfere with its right to determine its internal security practices or that "advance notification of posts allowed [the] guards to plan [their] theft"; (4) the proposal's impact on management's rights is far outweighed by its benefits to employees because employees "would be able to plan for assignments that separate them from food and drinking water and expose them to serious environmental hazards"; and (5) the proposal would have a positive effect on the effective and efficient operations of the Government because "morale would be improved and leave usage reduced." Id. at 17-19.
B. Analysis and Conclusions
We conclude that the first sentence of Proposal 2 is nonnegotiable and that the remaining portion of Proposal 2 constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
1. Proposal 2 Directly Interferes With Management's Right Under Section 7106(a)(1) 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 practices which are part of its plan to secure or safeguard its personnel, physical property, and operations against internal and external risks. See, for example, National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 708 (1990) (Proposal 1); and Fraternal Order of Police, Lodge 1F (R.I.) Federal and Veterans Administration, Veterans Administration Medical Center, Providence, Rhode Island, 32 FLRA 944, 957 (1988) (Proposals 6 and 7). Where an agency shows a link or reasonable connection between its goal of safeguarding personnel or property and protecting its operations, and its practice or decision designed to implement that goal, a proposal which directly interferes with or negates the agency's practice or decision conflicts with the agency's right under section 7106(a)(1). See, for example, American Federation of Government Employees, Council 214 and Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 34 FLRA 977, 983 (1990) (Department of the Air Force).
A proposal that negates an agency's plan to protect against the unauthorized removal of agency property interferes with the agency's section 7106(a)(1) right to determine its internal security practices. See International Association of Machinists and Aerospace Workers Union and Department of the Treasury, Bureau of Engraving and Printing, 33 FLRA 711, 730 (1988) (Proposal 9) (Department of the Treasury) (a proposal allowing employees to leave agency premises during scheduled breaks was contrary to section 7106(a)(1) because it interfered with the agency's plan "to protect against the pilfering of both bills and stamps with which the employees come in contact").
Proposal 2 requires the Agency, absent an unforeseen emergency, to notify the employees of their post and patrol assignments 7 days in advance and to notify employees of any change in their work requirements prior to the beginning of the administrative workweek. The Agency argues that its policy of providing no advance notice of posts, partners, and patrols is a precautionary security measure designed "to safeguard the installation and its employees." Agency's Statement of Position at 4, 5.
The Agency has determined that advance notice would provide "guards with the opportunity to plan for the access to secured or restricted areas for non-authorized personnel" and that its current policy precludes "guards from participating or colluding with other guards in activities which could compromise the security of [Aberdeen Proving Ground]." Id. at 4. To support this argument, the Agency provides evidence showing that two guards were recently removed from the Federal service for the "unauthorized removal and possession of Government property." Id. at 5. According to the Agency, "the advance notification of partner assignments and posts allowed these guards to plan this theft." Id. Therefore, the Agency contends that the Union's proposal requiring such advance notice interferes with its right to determine its internal security practices.
We find that the Agency's policy of providing no advance notice of partner assignments and specific patrol and post locations is linked to its stated purpose of safeguarding the property and operations of the installation and its employees. That is, the decision to provide no advance notice of partner and patrol assignments is designed to reduce the risk of the theft of Agency property by employees. By requiring the Agency to notify employees in advance of their post and patrol assignments and that work requirements will differ from the previous week, Proposal 2 directly interferes with the Agency's security plan. Therefore, Proposal 2 is inconsistent with the Agency's section 7106(a)(1) right to determine its internal security practices. See Department of the Treasury and Department of the Air Force.
The Union contends that the Agency "offers no evidence or any other proof" that "advance notification of posts allowed [the] guards to plan [their] theft[.]" Union's Response at 19. To the extent that the Union argues that the Agency has not shown a link because it has not offered such factual proof, we reject that argument. In establishing a link, the Authority requires an agency to show a reasonable connection between its goal of safeguarding personnel or property and its practice designed to implement that goal, rather than factual proof that the danger or risk has occurred. Compare Department of the Air Force, 34 FLRA at 984 (the agency established that restricting access to its facilities would maintain the security of its sensitive equipment and, thus, was a part of its plan to protect its physical property) with International Federation of Professional and Technical Engineers, Local 11 and Mare Island Naval Shipyard, Vallejo, California, 32 FLRA 380, 390 (1988) (Proposal 5) (the agency did not show that prohibiting motorcycles from entering its premises from a particular street entrance would protect its personnel and property from injury or damage and, thus, had made no connection between its goal and its security plan).
The Union's argument may also be construed to address the merits of the Agency's security plan, specifically, that providing no advance notice of work locations and assignments would not necessarily prevent thefts. However, where, as here, a link has been established between an agency's plan and its expressed security concerns, the Authority will not review the merits of the agency's plan in the course of resolving a negotiability dispute. See 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, 1056 (1988), reversed in part and remanded as to other matters sub nom. Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois v. FLRA, 890 F.2d 467 (D.C. Cir. 1989), decision on remand, 35 FLRA 936 (1990); 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) (Proposal 1), review denied sub nom. American Federation of Government Employees Council 214 v. FLRA, 865 F.2d 1329 (D.C. Cir. 1988) (order).
The Union also notes that the language of Proposal 2 is identical to language in the parties' previous agreement. However, the fact that the parties may have negotiated an identical provision in a previous agreement does not affect our determination that the first sentence of Proposal 2 directly interferes with the Agency's right to determine its internal security practices. See National Federation of Federal Employees, Local 1623 and South Carolina National Guard, Columbia, South Carolina, 28 FLRA 633, 635 n.3 (1987) (Provision 1), affirmed on other grounds sub nom. National Federation of Federal Employees, Local 1623 v. FLRA, 852 F.2d 1349 (D.C. Cir. 1988); Tidewater Virginia Federal Employees Metal Trades Council and Department of the Navy, Navy Public Works Center, Norfolk, Virginia, 25 FLRA 3, 7 (1987) (Proposal 1).
Accordingly, we find that Proposal 2 directly interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. However, because the Union claims that Proposal 2 constitutes an appropriate arrangement under section 7106(b)(3), this finding does not end our inquiry into the negotiability of the proposal.
2. The First Sentence of Proposal 2 Is Not an Appropriate Arrangement Under Section 7106(b)(3); The Second and Third Sentences of Proposal 2 Constitute An Appropriate Arrangement Under Section 7106(b)(3)
The Union contends that Proposal 2 constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. 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 states that Proposal 2 is intended to allow employees "to plan for assignments that separate them from food and drinking water and expose them to serious environmental hazards." Union's Response at 19. We conclude that the proposal is intended to address the adverse effects of the internal security practice that the Agency has used at its facilities and, therefore, that it is an "arrangement" within the meaning of section 7106(b)(3).
The next question is whether Proposal 2 excessively interferes with the Agency's right to determine its internal security practices so as not to constitute an "appropriate" arrangement. To determine whether a proposal "excessively interferes" with a management right, we weigh "the competing practical needs of employees and managers" to determine whether the benefit to employees afforded by the proposal is greater than the burden placed by the proposal on the exercise of the management right or rights involved. Kansas Army National Guard, 21 FLRA at 31-34.
The Agency contends that Proposal 2 is not an appropriate arrangement because it prevents the Agency from implementing an "integral aspect" of its internal security program. Agency's Statement of Position at 5. By prohibiting the Agency from issuing post, patrol, or partner assignments without advance notice, the Agency argues, the proposal excessively interferes with its right to determine its internal security practices and, therefore, is not an appropriate arrangement.
Citing the factors set forth in Kansas Army National Guard, the Union argues that employees given outdoor assignments need advance notice of their posts to know whether to bring insect repellent, warm clothes, food, and drinking water. The Union further argues that employees have no control over where they are assigned, over where posts are located, or over the hazards of insects or the weather. According to the Union, the proposal's impact on management's rights is far outweighed by its benefits to employees because employees "would be able to plan for assignments that separate them from food and drinking water and expose them to serious environmental hazards." Union's Response at 19. The Union concludes that by improving morale and reducing leave usage, the proposal would have a positive effect on the effective and efficient operations of the Government. The Union cites specific instances where food and clean water have not been readily available or where employees assigned to wooded posts subsequently contracted lyme disease. See Union's Petition for Review at 2; Union's Response at 17-18. The Agency did not refute the Union's claims.
The Agency has determined that advance notice of specific partners and work locations has provided an opportunity for employees to plan and implement the theft of Agency property. See Agency's Statement of Position at 4-5. It is not clear from the record whether the proposal's requirement that the Agency give advance notice of "employees' post and patrol assignments" requires the Agency to provide advance notice of partner assignments. However, to the extent that Proposal 2 requires the Agency to notify employees of their partners in advance, it is not an appropriate arrangement. Advance notification of partners would not serve the Union's interest in preparing employees for adverse working conditions and, therefore, does not provide a benefit that offsets the burden on the Agency's security plan.
We also find that the proposal's requirement that employees be notified of their post and patrol assignments 7 days in advance does not offset the burden it places on the Agency's security plan. While some advance notice would prepare employees for adverse working conditions, the Union has not established that employees need to be notified 7 days in advance to enable them "to plan for assignments that separate them from food and drinking water and expose them to serious environmental hazards." Union's Response at 19.
Accordingly, to the extent that the proposal requires the Agency to notify employees of their partner assignments in advance, it excessively interferes with the Agency's right to determine its internal security practices. Further, because the first sentence of Proposal 2 requires the Agency to notify employees of their post and patrol assignments 7 days in advance, it does not provide a benefit that offsets the burden on the Agency's security plan, and, therefore, is not an appropriate arrangement. Consequently, we find that the first sentence of Proposal 2 is nonnegotiable.
As to the second sentence of the proposal, the Agency has not alleged or shown that advance notice of "work requirements" would result in the same risk of collusion or theft. For the following reasons, we find that the second sentence of Proposal 2 is a negotiable appropriate arrangement.
Notifying employees in advance of changes in their "work requirements" would require only that the Agency tell employees whether they should bring warm clothes, food and water, or insect repellent. See Union's Response 18-19. Interpreted in this manner, the proposal would not require the Agency to divulge specific work locations, but would merely require the Agency to notify employees of what they should bring to work. The Union states that there are "twelve different posts . . . . in many different areas throughout the sprawling Aberdeen Proving Ground area." Union's Petition for Review at 2. The Agency has not alleged or shown that providing employees with general information of what they will require at work would negate its security plan.
We also note that the third sentence of Proposal 2 allows the Agency to deviate from the requirements of the first and second sentences of the proposal if there is an unforeseen emergency. We find that this exception does not sufficiently decrease the burden on the Agency's security plan so as to alter our conclusion that the first sentence of Proposal 2 is not an appropriate arrangement, nor does it affect our conclusion that the second sentence of Proposal 2 is an appropriate arrangement. In our view, the third sentence of Proposal 2 is negotiable insofar as it relates to the second sentence of the proposal.
For the foregoing reasons, we find that the benefits to employees in being prepared for adverse or extreme conditions outweigh the burden or risk to the Agency of notifying employees of changes in their work requirements or of what work conditions they should expect. Accordingly, we find that the second and third sentences of Proposal 2 do 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 the second and third sentences of Proposal 2 constitute a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. See National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 627-29 (1990) (Proposal 1). Compare American Federation of Government Employees, AFL-CIO, Local 683 and Department of Justice, Federal Correctional Institution, Sandstone, Minnesota, 30 FLRA 497, 500-01 (1987) (a proposal that completely reversed the substantive effect of management's action excessively interfered with management's right to determine its internal security practices and, therefore, was not an appropriate arrangement).
IV. Order
The Agency must upon request, or as otherwise agreed to by the parties, bargain concerning Proposal 1 and the second and third sentences of Proposal 2. (2) The petition for review as to the first sentence of Proposal 2 is dismissed.
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Opinion of Member Talkin, Concurring as to Proposal 2
I have previously expressed my concern about the relationship between management's right under section 7106(a)(1) of the Statute to determine internal security practices and providing notice to employees of matters that concern their conditions of employment. See American Federation of Government Employees, Local 1808 and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 37 FLRA 1439, 1448-55 (1990) and American Federation of Government Employees, Local 3457 and U.S. Department of the Interior, Minerals Management Service, Southern Administrative Service Center, New Orleans, Louisiana, 37 FLRA 1456, 1467-68 (1990). I continue to have concerns about the breadth that Authority precedent and the majority seem to afford management's right to determine internal security practices. Nonetheless, I concur with the result as to Proposal 2 in this case. Here, given the circumstances involved, I agree that a proposal that employees be provided a 7-day advance notice of post and patrol assignments excessively interferes with that management right. I do not address whether a shorter amount of time might warrant a different disposition.
FOOTNOTES:
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have footnotes.)
1. Member Talkin's separate concurring opinion as to Proposal 2 is set forth after the majority opinion.
2. In finding Proposal 1 and the second and third sentences of Proposal 2 to be negotiable, we make no judgment as to their merits.