[ v40 p521 ]
40:0521(51)NG
The decision of the Authority follows:
40 FLRA No. 51
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed on behalf of the Unions by the President of the National Border Patrol Council under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns six proposals offered by the Unions in response to a revised firearms policy proposed by the Agency.(1)
For the following reasons, we conclude that the first sentence of Proposal 1, which concerns the Agency's withdrawal of authority granted to employees to carry firearms, is nonnegotiable because it directly interferes with the Agency's right to assign employees under section 7106(a)(2)(A) of the Statute. The second sentence of Proposal 1, which requires that the Agency serve a written notice of the withdrawal of the authority to carry a firearm on the affected employee, is negotiable. The last sentence of Proposal 1, which addresses the assignment of duties to employees whose authorization to carry a firearm has been withdrawn, is a negotiable appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.
The first four sentences of Proposal 2, which concern necessary qualifications for employees to carry firearms, are nonnegotiable. The last sentence of Proposal 2, which addresses the assignment of duties to employees whose authorization to carry a firearm has been withdrawn, is a negotiable appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Proposals 3 and 4, which define the firearms which the Agency will authorize for use by its employees during both on-duty and off-duty assignments, are nonnegotiable because they excessively interfere with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.
Proposal 5, which provides that all employees involved in a shooting incident are entitled to Union representation and that they will have up to 48 hours in which to consult with a Union representative, is negotiable. Proposal 6, which provides that employees currently carrying certain kinds of privately-owned firearms will continue to be authorized to carry them until they are replaced by Agency-issued firearms, is nonnegotiable because it excessively interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.
II. Preliminary Matters
A. The Unions' Second Petition is Properly Before the Authority
The Unions offered proposals in response to the Agency's proposed changes in its Administrative Manual Chapter 4210, which sets forth the Agency's firearms policy. The Unions sought the assistance of the Federal Service Impasses Panel (the Panel). On November 9, 1989, the Agency asserted to the Panel that the Unions' proposals were nonnegotiable. The Agency's letter also stated that the Panel's "dismissal of the request for consideration of the alleged impasse . . . will start the [15] day period . . . for appeal of the [A]gency's allegation of nonnegotiability." Unnumbered Attachment at 1 to the Unions' January 30, 1989 Petition for Review. On December 12, 1989, the Panel dismissed the Union's request for consideration.
On December 23, 1989, the Unions filed the first petition for review in this case, which was docketed as 0-NG-1781. The Unions noted the Agency's position that dismissal of the Unions' request by the Panel would trigger the time limit for filing a petition for review under 7117(c)(2) of the Statute. The Unions asserted that they did not agree with the Agency's position, but that they were filing the Petition for Review with the Authority "as a protective measure." December 23, 1989, Petition for Review at 1.
On December 23, 1989, the Unions also filed a request for a statement of nonnegotiability with the Agency. On January 12, 1990, the Agency submitted a copy of its November 9, 1989 letter to the Panel to the Unions as its statement of nonnegotiability. In a cover letter, the Agency reiterated its position that the Panel's dismissal of the Unions' request to the Panel triggered the 15-day appeal period.
On January 30, 1990, the Unions filed a second petition for review in response to the Agency's January 12 declaration of nonnegotiability. That petition was originally docketed as 0-NG-1790 but, on February 27, 1990, the Authority issued an Errata stating that the Unions' second petition should have been included in the file for case number 0-NG-1781.
The Agency contends that only the Unions' first petition for review should be considered by the Authority. The Agency asserts that the Unions had "15 days in which to file an appeal from the date of the alleged declaration of nonnegotiability" and that "this time limit is necessarily tolled by the issuance of a dismissal by the [Panel.]" Agency's February 9, 1990, Statement of Position at 2. The Agency asserts that as the Unions in this case were "already timely notified of the [Agency's] position" on negotiability, the Unions "no longer needed the tactical protection of . . . a separate, pro forma request for a formal, written, declaration of nonnegotiability in order to file an appeal." Id. at 3, 4. The Agency concludes that the Unions' second petition "should be ignored, or at the most, should be consolidated with the earlier filing and considered as a supplemental statement." Id. at 4.
The Unions "urge the Authority to dismiss [their] earlier Request . . . on procedural grounds, leaving the resolution of the negotiability issues to" the second petition for review. February 27, 1990, Reply Brief at 2.
We conclude that the Unions' second petition for review, dated January 30, 1990, was timely filed and that it is properly before the Authority.
Section 7117(c) of the Statute provides that, when an agency "alleges that the duty to bargain in good faith does not extend to any matter," a union may appeal that determination within 15 days. A union has two options when it receives an unsolicited allegation of nonnegotiability, including one made by an agency during Panel proceedings. The union's first option is to respond to the unsolicited allegation of nonnegotiability and timely file a petition for review with the Authority pursuant to section 2424.3 of the Authority's Rules and Regulations. The union's second option is to ignore the unsolicited allegation of nonnegotiability made before the Panel, make a written request for a written allegation of nonnegotiability from the agency, and timely file its petition for review within the time limits established in section 2424.3. See National Federation of Federal Employees, Local 422 and U.S. Department of the Interior, Bureau of Indian Affairs, Colorado River Agency, 34 FLRA 721 (1990).
The Agency made an unsolicited allegation of nonnegotiability to the Panel on November 9, 1989. The Unions did not file a timely petition for review subsequent to that allegation. The Unions waited until the Panel declined to assert jurisdiction over the parties' dispute before they filed their first petition for review on December 23, 1989. Although the Unions contended that this petition was "filed prematurely," they filed it consistent with the Agency's view that the 15-day appeal period began when the Panel declined jurisdiction over the parties' dispute. Union's February 26, 1990, Reply Brief at 1. Before the Authority took any action on their first petition for review, the Unions timely filed their second petition for review with the Authority.
We conclude that the Unions' first petition for review was untimely filed because it was not filed within 15 days of the Agency's unsolicited allegation of nonnegotiability before the Panel. In so concluding, we reject the Agency's assertion that the 15-day time period in which to file a petition for review was tolled by the issuance of the Panel's dismissal of the Unions' request for assistance. However, we construe the Unions' request to dismiss their first petition "on procedural grounds" as a request to withdraw that petition. Unions' February 27, 1990, Reply Brief at 2. As the Unions filed the first petition as a protective measure only, we will grant the Unions' request to withdraw it.
The Unions' second petition for review, also docketed as Case No. 0-NG-1781, was timely filed and is properly before the Authority in this case. See Laborers' International Union of North America, AFL-CIO-CLC, Local 1267 and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA 686 n.1 (1984). We will consider the positions of the parties submitted in connection with the second petition for review in resolving the issues in this case. We note, however, that both parties incorporated their earlier positions into the statements submitted in connection with the second petition and that the proposals in both petitions are identical.
B. Appropriate Arrangements
The Agency requests the Authority to reconsider its decision in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG), addressing the standard for determining whether a proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Agency argues that any proposal found to interfere with a management right is nonnegotiable even if the proposal is intended to be an appropriate arrangement.
In KANG, the Authority established the test for determining whether proposals are negotiable as "appropriate arrangements" under section 7106(b)(3) of the Statute. The Authority referenced the decision of the United States Court of Appeals for the District of Columbia Circuit in American Federation of Government Employees, AFL-CIO, Local 2782 v. Federal Labor Relations Authority, 702 F.2d 1183 (D.C. Cir. 1983), and stated that the court "enunciated a standard which requires an analysis of whether 'excessive interference' with a right reserved to management would result from the implementation of the proposal." KANG, 21 FLRA at 25.
We decline the Agency's request that we reconsider KANG. Accordingly, based on KANG, we reject the Agency's assertion that any proposal found to interfere with a reserved right is nonnegotiable even if the proposal is intended to be an appropriate arrangement. Instead, to determine whether a proposal is negotiable as an appropriate arrangement, we will determine whether the proposal constitutes an arrangement and, if it does, whether it excessively interferes with a management right under section 7106 of the Statute. See, for example, American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, U.S. Border Patrol Western Region, 39 FLRA No. 55, slip op. at 7-8 (1991); National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 835 (1990) (Provision 1) (Naval Facilities Engineering Command); National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 622 (1990) (Proposal 1).
C. All of the Wording in the Proposals Is Subject to Negotiability Determinations by the Authority
The Unions' proposals consisted of additions to, and deletions from, the wording of the Agency's revised firearms policy. The Agency states that "the fact that a Union proposal merely reiterates management's own decision on how to exercise a reserved right does not make the proposal negotiable . . . [and] proposals which impose an independent contractual limitation on how management will exercise a particular right are not negotiable merely because they faithfully repeat the language of management's own policy statements." Statement of Position at 6. The Agency further contends that the inclusion of various parts of its revised policy in a collective bargaining agreement would improperly subject the exercise of the management right involved in the policy to arbitral review.
The Unions assert that the "Agency has mistakenly classified all of the language" in the proposals at issue herein as "Union 'proposals'" and that only the highlighted portions of the proposals "represent Union proposals." Reply Brief at 4. The Unions contend that the "balance of the language was proffered by the Agency, and was included solely for the purpose of putting the Unions' proposals into proper context, and is therefore not at issue in the instant proceeding before the Authority." Id.
We conclude that the entire wording of the proposals submitted by the Unions is subject to review by the Authority, whether the proposals include language taken from the Agency's revised firearms policy or whether the proposals include additions or deletions to the policy. The Unions' proposals are framed in the context of the Agency's revised policy, include language from the Agency's policy, and severing the wording of the Unions' additions or deletions from the context of the Agency's revised policy would make the proposals meaningless. Moreover, the Unions seek to have the entire proposals included in the parties' collective bargaining agreements.
The fact that the wording of the proposals is, in part, identical to the language of the Agency's policy or regulation does not, by itself, make the proposals negotiable. See National Treasury Employees Union and Nuclear Regulatory Commission, 31 FLRA 566, 581 (1988) reversed in part and enforced in part as to other matters sub nom. U.S. Nuclear Regulatory Commission v. FLRA, 895 F.2d 152 (4th Cir. 1990). Instead, to the extent that a portion of the Agency's policy constituted, and resulted from, the exercise of a management right under section 7106 of the Statute, proposals incorporating the policy would be nonnegotiable as an independent contractual limitation on management's rights. See id.; Compare American Federation of Government Employees, AFL-CIO, Council of Marine Corps Locals, Council 240 and Department of the Navy, United States Marine Corps, 35 FLRA 108, 111-12 (1990) (proposal did not establish a separate contractual limitation on management's right to take disciplinary action). Under these circumstances, we will review the entire proposals in order to determine whether they are negotiable.
Finally, we reject the Agency's contention that certain proposals or portions of proposals are nonnegotiable on the basis that inclusion of them in a collective bargaining agreement would subject them to arbitral review. The Agency's assertion that an arbitrator's judgment may be substituted for its own is not a basis for finding a proposal to be nonnegotiable. See National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Baltimore, Maryland, 39 FLRA No. 25, slip op. at 5 (1991). As we noted above, the negotiability of each of the proposals before us must be decided on its own merits. Those proposals which we determine are within the duty to bargain may be included in any agreement reached by the parties. The question as to whether any subsequent arbitral award based on these proposals constitutes an impermissible interference with management's rights must be directed to the merits of such an award. We will not address this argument further.
III. Proposal 1
Section 4C- Carrying Firearms
The authority granted to an individual [or] a group of employees to carry a firearm during duty or non-duty hours may be withdrawn or restricted by an Authorizing Official when the withdrawal or restriction is in the best interests of the Service and/or the employee(s). A written notification, including justification for revocation, will be served [upon the employee(s)] and may either precede or follow the action. In all cases where the authority of an individual to carry a firearm in the performance of duty is withdrawn or restricted, management will [make reasonable efforts to assign duties which do not require the carrying of a firearm, in order that the safety of the employee(s) and co-workers is not jeopardized].
[The bracketed, bold-type portions of the proposal represent wording added by the Unions to the language of the Agency's revised policy.]
A. Positions of the Parties
1. The Agency
The Agency contends that the first sentence of Proposal 1, "is clearly nonnegotiable . . . [because it] deals with management's determinations as to who will be authorized to carry firearms." Statement of Position at 15. The Agency asserts that such determinations constitute exercises of management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency also contends that the sentence interferes with management's rights to assign work, assign employees, and to determine the personnel by which Agency operations will be conducted because the proposal "deals with management's determinations as to who is qualified to use certain equipment." Id. at 15-16.
The Agency contends that the first sentence of the proposal does not constitute an appropriate arrangement because "it would 'totally abrogate' management's discretion" as to whether employees "should be allowed to carry a firearm[.]" Id. at 17. In this regard, the Agency contends that the proposal "would affect management's initial exercise of the right to determine who can use firearms, rather than interfering with any subsequent exercise of some other right in an effort to accommodate employees adversely affected by the initial exercise of the right." Id. (citation omitted). The Agency concludes that if the proposal is found to be an arrangement, it is nonnegotiable because the excessively interferes with its "right to determine who can use a firearm . . . ." Id.
The Agency contends that the second sentence of the proposal is nonnegotiable because it "would subject the decision to revoke the authorization to use a firearm to arbitral review." Id. at 18. The Agency argues that if the proposal "were merely to require notice of revocation on the employee before or after the fact without making the justification for revocation subject to arbitral review (or further negotiation with the Union), the proposal would be a negotiable procedure." Id. at 18-19 (emphasis in original).
The Agency asserts that the last sentence of Proposal 1 is nonnegotiable because it would interfere with management's right to assign work and it "would subject to arbitral review management's determination that the duties assigned do not present a situation where the employee needs to be armed." Id. at 19-20 (footnote omitted). The Agency also asserts that the proposal would interfere with management's right to assign work because it "would preclude management from placing the employee on administrative leave" so as to give the Agency "time to investigate a firearms discharge" "by requiring the assignment of nonhazardous duty." Id. at 25. Moreover, according to the Agency, the last sentence of Proposal 1 "interferes with management's right to remove and discipline employees under section 7106(a)(2)(A)" because it could be interpreted "as requiring the assignment of other duties insofar as it would preclude the assignment of hazardous duties." Id. at 24 (emphasis in original). The Agency notes that "[i]f the proposal only required that management not assign such hazardous duties . . . when management itself has determined that the duties are truly hazardous . . . [and that] determination would not be subject to arbitral review, the proposal would be negotiable." Id. at 20 n.5 (emphasis in original).
The Agency maintains that the last sentence of the proposal does not constitute an appropriate arrangement because "[n]ot authorizing the use of a firearm does not in any way adversely affect an employee, in and of itself." Id. at 21. The Agency contends that the proposal is "intended to deal with the potentially adverse effects if, after withdrawing an employee's authorization to carry a weapon, management decides to assign hazardous work to that employee." Id. at 22. The Agency concludes that the proposal constitutes "a prohibition against making the assignment ab initio" rather than being an "arrangement for employees who could or would be adversely affected by such an assignment." Id.
2. The Unions
The Unions assert that the "disputed language 'upon the employee'" in the second sentence of Proposal 1 "is purely procedural[,]" and that "the exercise of a management right of withdrawing the authority to carry a firearm is not affected by that language." Reply Brief at 6.
The Unions assert that the last sentence of Proposal 1 "would merely require the Agency to make reasonable efforts to protect the safety and well-being of employees by not unnecessarily subjecting disarmed employees to potentially dangerous situations." Id. at 7. The Unions contend that the proposal "in no way mandate[s] the assignment of employees to any type of duty, and [is] not intended to prevent management from taking actions which would relieve employees of all duties, including suspensions or removals." Id. (emphasis in original).
The Unions also assert that the last sentence of Proposal 1 is "clearly an appropriate arrangement for employees adversely affected by the Agency's exercise of its right to determine which employees are qualified to carry firearms in the course of their duties." Id. The Unions contend that the "adverse effects" ameliorated by the proposals relate "to the requirement to perform normally dangerous law enforcement duties without a firearm." Id. at 7-8. The Unions conclude that the proposal "would not require the Agency to arm any employees, nor would it prohibit the Agency from assigning work which might be considered hazardous to unarmed employees[,]" but that it would require "'reasonable efforts' on the Agency's part to assign duties which do not require the carrying of firearms." Id.
B. Analysis and Conclusions
1. The First Sentence
Management's right to assign employees encompasses both the right to determine the requirements and qualifications necessary to perform a particular job task and the right to determine which employees meet those qualifications. Proposals which deprive management of this discretion directly interfere with management's right to assign employees under section 7106(a)(2)(A) of the Statute. See National Federation of Federal Employees, Local 1437 and United States Army Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey, 35 FLRA 1052, 1057-61 (1990) (Proposal 2).
The first sentence of Proposal 1 provides that the authority to carry a firearm may be withdrawn by the Agency when the action is "in the best interests of the Service and/or the employee(s)." As plainly worded, the sentence establishes a standard by which Agency determinations as to the qualifications necessary to carry a firearm, and the application of those determinations so as to withdraw or restrict the carrying of firearms, are to be measured. Although the proposed standard is broad, it would nevertheless constitute a substantive limitation on the Agency's discretion to determine the qualifications necessary to carry a firearm. Consequently, we conclude that the first sentence of Proposal 1 directly interferes with management's right to assign employees.
Because we find that the first sentence of Proposal 1 directly interferes with management's right to assign employees, we do not address the Agency's additional arguments. Consistent with its position that the first sentence does not constitute a proposal, the Union did not assert that it constituted an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Moreover, as the Union did not address any aspects of that sentence, we have no record on which to determine whether the proposal excessively interferes with the Agency's right. We are constrained to conclude, therefore, that the first sentence of Proposal 1 is nonnegotiable.
2. The Second Sentence
The second sentence of Proposal 1 requires the Agency to serve a written notice of the withdrawal of the authority to carry a firearm on the affected employee. The Agency's only argument concerning this sentence is that it would improperly subject the Agency's determination as to the justification for its withdrawal of the right to carry a firearm to arbitral review. The Agency asserts, in this regard, that the second sentence of Proposal 1 would constitute a negotiable procedure if the Agency's justification for the revocation of the authority to carry a firearm were not subject to arbitral review.
As we discussed earlier, the mere assertion by the Agency that the inclusion of a proposal in a collective bargaining agreement will subject its actions regarding the proposal to arbitral review is not a basis for finding a proposal to be nonnegotiable. As the Agency offers no other argument that this portion of Proposal 1 is nonnegotiable, and as no basis for so concluding is otherwise apparent, we conclude that the second sentence of Proposal 1 is negotiable.
3. The Last Sentence
Management's right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine what duties will be assigned. Proposals which require an agency to assign particular work to an employee directly interfere with management's right to assign work. See, for example, International Federation of Professional and Technical Engineers, Local 4 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 35 FLRA 31, 36-38 (1990) (Portsmouth Naval Shipyard) (provision requiring agency to make every effort to (1) place the employee in a different position at the same pay and grade level which the employee is qualified to perform or, if practicable, (2) waive qualifications standards and place the employee in a "closely related occupation" held to directly interfere with management's rights to assign employees and work).
The last sentence of Proposal 1 would require management to make a reasonable effort to find work not requiring the use of a firearm for an employee whose authority to carry a firearm has been withdrawn or restricted. According to the Unions, the last sentence of Proposal 1 would "in no way mandate the assignment of employees to any type of duty." Reply Brief at 7 (emphasis in original). We agree that, by requiring the Agency to make a reasonable effort, the sentence does not impose an absolute requirement that the Agency assign particular work to employees. The inclusion of such qualifying language does not remove the limitation placed on management's exercise of its right to assign work, however. See, for example, Portsmouth Naval Shipyard, 35 FLRA at 38; National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27, 38 (1991) (provision requiring agency to make a reasonable effort to find work for an employee removed from a work area where conditions threaten the employee's health or physical safety directly interfered with management's right to assign work). We conclude, therefore, that by requiring the Agency to make a reasonable effort to exercise its right to assign work in a particular way, the sentence directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.
We also conclude, however, that the last sentence of Proposal 1 does not directly interfere with the Agency's rights to remove and discipline employees. Nothing in the plain wording of the sentence, or the Unions' statement of intent, supports a conclusion that the sentence would affect in any way the Agency's discretion to propose or effect disciplinary or removal actions under whatever standards and criteria are applicable to those actions. As we noted in American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187, 206 (1991) (Merchant Marine Academy), "the obvious and necessary consequence of a removal of an employee is the cessation of the assignment of work to that employee." We held, however, that notwithstanding that connection, a requirement that an agency provide notice of a decision concerning a removal action did not directly interfere with the agency's right to assign work. The Agency here makes the same claim we rejected in Merchant Marine Academy, albeit in reverse, by claiming that the assignment of work interferes with its rights to discipline and remove employees. For the same reasons we rejected this argument in Merchant Marine Academy, we reject it here.
Although the last sentence of Proposal 1 directly interferes with management's right to assign work, it is negotiable if it is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. In determining whether a proposal is an appropriate arrangement for adversely affected employees, the Authority first determines whether the proposal is intended to be an "arrangement" for employees adversely affected by management's exercise of a reserved right. This determination is made by examining "the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse." KANG, 21 FLRA at 31. Proposals addressing "'purely speculative or hypothetical concerns, or which are otherwise unrelated to management's exercise of its reserved rights,'" will be excluded from consideration as appropriate arrangements. West Point Elementary School Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008, 1012 (1990) (quoting American Federation of State, County, and Municipal Employees, Local 3097 and Department of Justice, 24 FLRA 453, 458 (1986)). If a proposal is determined to be an "arrangement," the Authority determines whether the proposed arrangement is "appropriate," or whether it is inappropriate because it excessively interferes with management's rights. KANG, 21 FLRA at 31-33.
It is foreseeable that an employee whose authority to carry a firearm has been withdrawn will be a danger to himself and to his colleagues if he remains in a position where the carrying of a firearm is required. Placing such an employee in a position where the carrying of a firearm is not required would minimize, or eliminate, this danger. Therefore, we conclude that the last sentence of Proposal 1 is an "arrangement," within the meaning of section 7106(b)(3) of the Statute, because it would ameliorate the adverse effect on an employee of management's exercise of its right under section 7106(a)(2)(A) of the Statute to decide that the employee is no longer qualified to carry a firearm.
Having concluded that the last sentence of Proposal 1 is an "arrangement," we now consider whether it is "appropriate" within the meaning of section 7106(b)(3) of the Statute. See Naval Facilities Engineering Command, 36 FLRA at 841 ("Where an adverse effect is reasonably foreseeable, and the disputed provision or proposal is intended to be an arrangement for employees adversely affected, we will proceed to examine whether the provision or proposal excessively interferes with management's rights."). In KANG, 21 FLRA at 33, the Authority stated that it would consider whether the negative impact on management's rights is disproportionate to the benefits to be derived from the proposed arrangement. Applying that standard, we must determine whether the last sentence of Proposal 1 excessively interferes with management's right to assign work.
We find that the burden placed on the Agency by the last sentence of Proposal 1 is minimal. Nothing in the last sentence would require the Agency to assign work to an employee if work was not available or the employee was not qualified to perform it. Furthermore, the proposal provides only that the Agency make a "reasonable effort" to reassign employees whose authority to carry firearms has been withdrawn to positions where the carrying of firearms is not necessary. As noted previously, the proposal does not place an absolute requirement on the Agency.
On the other hand, by requiring that the Agency make reasonable efforts to reassign employees whose authority to carry firearms has been withdrawn, the proposal offers a significant benefit to both the affected employees and other employees with whom they might be assigned. The proposal would facilitate placement of the affected employees in positions where their inability to carry a firearm would not pose a danger to themselves or to their colleagues. On balance, we find that the benefits afforded employees by the last sentence far outweigh the minimal impact on management's right to assign work. Accordingly, we conclude that the last sentence of Proposal 1 does not excessively interfere with management's rights and is an appropriate arrangement negotiable under section 7106(b)(3) of the Statute.
IV. Proposal 2
Section 21- Firearms Qualifications
All officers required or designated to carry firearms shall attend quarterly qualification with handguns. All officers authorized to carry handguns shall be required to qualify on the standard Service handgun qualification course (see Exhibit IV). Officers who demonstrate an acceptable level of competence with handguns by firing a 70% or more on the prescribed courses, and by demonstrating safe operating techniques and proper execution of immediate action drills will be certified proficient by the Firearms Instructor on Form G-109. Those who are considered deficient will not be authorized to carry a handgun until the deficiencies have been corrected. [In all cases where the authority of an individual to carry a firearm in the performance of duty is withdrawn or restricted, management will make reasonable efforts to assign duties which do not require the carrying of a firearm, in order that the safety of the employee(s) and co-workers is not jeopardized.]
[The bracketed, bold-type sentence in the proposal is wording proposed by the Unions to be added to the Agency's revised policy. Underscored portion in original.]
A. Positions of the Parties
1. The Agency
The Agency asserts that the first four sentences of Proposal 2 are nonnegotiable because management "must retain its discretion under section 7106(a)(2)(B) to determine the qualifications necessary to be authorized to handle certain equipment." Statement of Position at 25-26. The Agency also asserts that the first sentence of Proposal 2 "violates the right to assign work . . . by requiring the assignment of particular work . . . at specific times." Id. at 27. The Agency makes the same arguments regarding the last sentence of Proposal 2 as it made in connection with the last sentence of Proposal 1.
2. The Unions
The Unions took no specific position regarding the first four sentences of Proposal 2. The Unions' position regarding the last sentence of Proposal 2 is the same as their position concerning the last sentence of Proposal 1.
B. Analysis and Conclusions
1. First Four Sentences
We agree with the Agency that the first four sentences of this proposal would place substantive limitations on its right, under section 7106(a)(2)(A) of the Statute, to assign employees by determining the qualifications necessary for employees to carry firearms.
In Proposal 1, we found that a general limitation on the Agency's discretion to withdraw the authority to carry firearms directly interfered with management's right to assign employees under section 7106(a)(2)(A) of the Statute. The first four sentences of Proposal 2 would limit the Agency's discretion to determine whether employees who are required or designated to carry firearms should (1) qualify quarterly, (2) qualify on a course designated by the Agency, (3) demonstrate a specific level of proficiency determined by the Agency, and (4) have their authority to carry firearms withdrawn if such proficiency is not demonstrated. By placing substantive limitations on the Agency's discretion to establish the criteria by which it will decide whether to withdraw the authority to carry firearms, as well as placing limitations on the Agency's discretion to withdraw the authority to carry firearms, the effect of the first four sentences of Proposal 2 is the same as the effect of the first sentence in Proposal 1. Consequently, for the reasons set forth in our discussion of the first sentence of Proposal 1, we conclude that the first four sentences of Proposal 2 directly interfere with management's right to assign employees.
As noted with respect to Proposal 1, the Unions did not contend that the first four sentences of Proposal 2 constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute and did not otherwise provide a record on which to determine that the proposal constitutes an appropriate arrangement. Therefore, as the first four sentences of Proposal 2 directly interfere with management's right to assign work, we are constrained to conclude that they are nonnegotiable.
2. The Last Sentence
The last sentence of Proposal 2 contains the same wording as the last sentence of Proposal 1, and the parties made the same arguments regarding both sentences. Therefore, we conclude, for the reasons set forth in our discussion of the last sentence of Proposal 1, that the last sentence of Proposal 2 is a negotiable appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.
V. Proposals 3 and 4
Proposal 3
Section 4F- Carrying Firearms
[Service] authorization to carry personally-owned handguns during duty and non-duty hours shall be limited specifically to Service-approved revolvers and semi-automatic pistols [meeting the criteria outlined in sub-sections 12 and 14].
Proposal 4
Section 12- Approved Personally-owned Firearms
A. Handguns--Authorization to carry personally-owned handguns during duty hours, or [during] non-duty hours [pursuant to AM 4210, sub-section 4B], shall be limited specifically to Service-approved revolvers and semi-automatic pistols as follows:
[Revolvers]
[On-duty]--Personally-owned revolvers authorized for carry shall be double-action, in caliber .357 Magnum. Revolvers with a barrel length of not less than 2-1/2 inches, nor more than four inches, may be approved for use by officers who are required to work in civilian clothes, assigned to inspectional duties, and for aircraft pilots. Revolvers with a barrel length of not less than 3-1/2 inches nor more than 4 inches may be approved for duty by other uniformed officers.
[Off-duty--Personally-owned revolvers for carry shall have a steel frame, and a minimum capacity of five shots. They must also be double-action, in caliber .38 Special or .357 Magnum.]
[Semi-automatic Pistols]
[On-duty]--Personally-owned semi-automatic pistols authorized for carry will be double-action or safe-action semi-automatic pistols, in caliber 9mm Luger or greater, equipped with a firing pin lock but without an external, manually operated safety or a magazine disconnector. The maximum barrel length is 5 inches. The following semi-automatic pistols meet the Service-approved criteria, and are the only pistols currently authorized for carry:
Sig-Sauer P220, P225 and P226
Glock 17 and 19
Heckler and Koch P7 M8 and M13
Walther P5 and P88
NOTE: This list will be periodically updated by the Firearms Review Board through the Office of the Deputy Commissioner to include new developments once formal testing and evaluation on new handguns has been accomplished.
[Off-duty--Personally-owned semi-automatic pistols authorized for carry will be double-action or safe-action semi-automatic pistols, in caliber .380 ACP or greater.]
[The bracketed, bold-type portions of the proposals represent wording added by the Unions to the language of the Agency's revised policy.]
A. Positions of the Parties
1. The Agency
The Agency asserts that Proposals 3 and 4 "specifically list required characteristics and even the brands of privately-owned firearms which the [Agency] will authorize employees to use on- and off-duty." Agency's Position at 28. The Agency argues that insofar as these proposals define the particular weapons to be used while on duty, the proposals interfere with management's right under section 7106(b)(1) of the Statute to determine the methods, means, and technology of performing work. The Agency also argues that as the proposals "deal with lethal weapons[,] . . . management's determinations as to which weapons can be used" involve its right to determine internal security under section 7106(a)(1) of the Statute. Id. at 30. The Agency asserts that the Authority "cannot substitute its judgment for that of the agency with respect to whether [the agency] is making correct internal security determinations." Id.
The Agency contends that its argument concerning the nonnegotiability of proposals specifying the firearms which may be used during duty hours "applies with respect to off-duty use of firearms." Id. at 31. The Agency asserts that its right to determine its internal security practices and the methods, means, and technology of performing its work, means "that it is solely up to management to determine whether it will authorize the off-duty use of low-powered, concealable weapons." Id. The Agency notes, in this regard, that the Unions' proposals concern "what firearms the [Agency] will authorize its employees to use off-duty because of their status as [Agency] employees, and not with what they are permitted to carry under state laws as private citizens." Id. at 32 (emphasis in original).
2. The Unions
The Unions assert that the wording of those portions of the proposals they sought to modify "deal[s] exclusively with the types of weapons that may be carried during non-duty hours by [employees] otherwise authorized to carry firearms." Reply Brief at 10 (emphasis in original). The Unions assert that in a prior decision involving the same parties, United States Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, 31 FLRA 1123 (1988) (INS I), the Authority held that "it is negotiable to restrict employer activities that have no relationship to the employment of the employees." Id. at 10. The Unions conclude, therefore, that the "lawful carrying of weapons during non-duty hours, is not, in itself, related to employment." Id. at 11 (emphasis in original).
The Unions contend that if "it is a management right to determine which types of weapons are appropriate for off-duty use," their proposals "represent appropriate arrangements for employees adversely affected by the exercise of that right." Id. at 13-14. The Unions assert that the "adverse effect upon employees" of management's policy of limiting the use of off-duty weapons "is the compromising of [employees'] safety and well-being . . . ." Id. at 14. The Unions note that concealable weapons are authorized for undercover assignments, and they assert that off-duty situations "are perfectly analogous" to undercover assignments. Id. The Unions conclude that their proposals would result in a "minimal" interference with management rights which would be "greatly outweighed by the increased employee safety afforded by expanding the choice of off-duty weapons . . . ." Id.
B. Analysis and Conclusions
1. Proposals 3 and 4 Directly Interfere With the Agency's Right to Determine Its Internal Security Practices
Under section 7106(a)(1) of the Statute, an agency's right to determine its internal security practices includes the right to determine the policies and practices that are necessary to safeguard its operations, personnel and physical property against internal or external risks. See, for example, National Federation of Federal Employees, Local 2050, and U.S. Environmental Protection Agency, 35 FLRA 706, 708 (1990) (EPA). In International Federation of Professional and Technical Engineers, Local 25 and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 33 FLRA 304, 306-08 (1988) (Mare Island Naval Shipyard), the Authority held that an agency's determination as to whether, and to what extent, its security personnel should be armed is a decision concerning the agency's internal security practices.
We reject, at the outset, the Unions' assertion that the proposals concern only off-duty use of firearms. The proposals, as plainly worded to encompass the Unions' proposed modifications to the Agency's policy, identify certain portions of the policy as applying to on-duty use of firearms and other portions as applying solely to off-duty use. As such, the proposal clearly addresses both on-duty and off-duty use of firearms.
In 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) (VAMC Providence), the Authority held that the "determination of the practices and policies which are necessary to the accomplishment of the security function of an agency, including the equipment to be used and the assignment of personnel, is directly related to the determination of an agency's internal security practices." We conclude that, in the circumstances of this case, the Agency's determination as to the categories of firearms which safely may be used by its employees in performing their law enforcement responsibilities constitutes the Agency's determination of the policies and practices necessary to safeguard its operations and personnel. Accordingly, the Agency's determination as to what firearms its employees may be authorized to carry constitutes the exercise of the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.
As the Agency's determinations regarding the categories of firearms that safely may be used by its employees during the performance of their duties constitute exercises of its right to determine its internal security practices, Proposals 3 and 4, which restrict the Agency's ability to modify its determinations by establishing substantive criteria governing those determinations, directly interfere with that right. See Mare Island Naval Shipyard (determination as to whether, and to what extent, personnel providing security are to be armed involved an internal security question); see also VAMC Providence, 32 FLRA at 955-58 (proposals which required an agency to provide particular equipment and staffing patterns for its police officers, interfered with the Agency's right to determine internal security practices). Accordingly, we conclude, as to the portions of Proposals 3 and 4 addressing on-duty use of firearms, that the proposals directly interfere with the Agency's right to determine its internal security practices.
As for the off-duty use of firearms, the Unions assert that a prior decision by the Authority involving the same parties, INS I, established the principle "that it is negotiable to restrict employer activities that have no relationship to the employment of the employees." Reply Brief at 10. The Unions conclude that the "lawful carrying of weapons during non-duty hours, is not, in itself, related to employment." Id. at 11 (emphasis in original).
The Unions' arguments are not clear. First, arguments regarding the effects of matters or proposals on the work situation or employment relationship are relevant to determining whether such proposals or matters relate to conditions of employment. See generally, Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986). A proposal which does not relate to a condition of employment is not within the duty to bargain under the Statute. Id. at 236. The Agency does not assert that Proposals 3 and 4 do not relate to conditions of employment, however. Accordingly, as the Unions assert that the proposals are negotiable, there appears to be no dispute that Proposals 3 and 4 concern conditions of employment.
Second, as the Agency concedes, an employee may, as a private citizen, carry any weapon during his or her off-duty hours, whether or not authorized by the Agency, provided that the employee complies with applicable laws. The presence or absence of Agency authorization to carry certain firearms off-duty, therefore, does not affect an employee's rights to carry lawful weapons. There is no basis on which to conclude that the Agency seeks to control, or limit, an employee's existing rights to carry firearms off-duty.
Finally, the proposals would modify the existing authorization for employees to carry firearms off-duty by requiring the Agency to authorize the off-duty use of certain additional firearms. That is, the Unions are seeking Agency action with respect to employees' off-duty activities. The effect of Proposals 3 and 4, in this regard, is to extend the existing employment relationship between the Agency and employees beyond those employees' duty hours by allowing employees to carry, with Agency approval, certain weapons off-duty. As such, the proposals flow solely from that employment relationship. Moreover, in view of the purpose and intent of Proposals 3 and 4, the Union's reliance on INS I is misplaced. The portion of that decision relied on by the Union addressed the negotiability of a provision seeking to limit the agency's right to conduct investigations regarding alleged misconduct off-duty.
The Agency states that it authorizes the off-duty use of firearms by its employees (1) "to allow for the carrying of firearms to and from duty assignments[;]" (2) "to allow for additional voluntary training and practice when the employee is away from his or her regular duties[;]" and (3) "to promote the personal security of officers who must perform law enforcement functions and may be subject to challenge away from the[ir] official duty station . . . ." Statement of Position at 32. The Agency states that it has determined that "the carrying off-duty of handguns which differ from . . . approved on-duty guns may be hazardous to an employee." Id. at 34.
We conclude that Agency determinations regarding the categories of weapons to be authorized for off-duty use by employees constitute exercises of the Agency's right to determine its internal security practices. The Agency, for the reasons enumerated above, has authorized employees to carry firearms outside of their normal tours of duty. One of the stated reasons for such an authorization is to provide for the personal security of its employees. Indeed, the essence of the parties' dispute regarding Proposals 3 and 4 is their disagreement over which weapons may most safely be used. The Unions assert, in this regard, that the proposals would allow the employees to carry more concealable weapons which are "more likely to be carried and available if needed." Reply Brief at 13. The Agency asserts that the "relative power (ability to incapacitate) offered" by the firearms authorized by the Agency "is significantly greater" than that offered by the concealable weapons for which the Union seeks authorization. Statement of Position at 33. The Agency contends that "concealability is either unnecessary or undesirable with respect to any of the purposes for which off-duty carrying of a firearm is authorized." Id. at 34.
Proposals 3 and 4 would require the Agency to authorize the use of weapons which the Agency has determined are inappropriate and unsafe. The Agency's determinations as to which weapons will be authorized for off-duty use, like its determinations regarding on-duty use of weapons, constitute determinations of the policies and practices necessary to safeguard its operations and personnel. Consistent with our conclusion regarding on-duty use of firearms, therefore, we conclude that Proposals 3 and 4, insofar as they deal with the nature of the firearms which the Agency will authorize for off-duty use by its employees, directly interfere with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.
Having concluded that Proposals 3 and 4 directly interfere with the Agency's right to determine its internal security practices, we do not address the Agency's additional arguments, including its argument that the proposals directly interfere with its right to determine the methods, means, and technology of performing work. Accordingly, as the Union does not assert that the portions of Proposals 3 and 4 addressing on-duty use of firearms constitute appropriate arrangements, or otherwise provide a record on which we could determine whether these portions excessively interfere with the Agency's right, we are constrained to conclude that these portions of the proposals are nonnegotiable.
2. Proposals 3 and 4 Are Not Appropriate Arrangements
As we noted earlier, to determine whether the proposals constitute an appropriate arrangement, we determine whether the proposals are (1) intended to be an arrangement for employees adversely affected by the exercise of a management right, and (2) appropriate because they do not excessively interfere with the exercise of management's right. KANG. More particularly, in determining, as a threshold matter, whether a proposal is an "arrangement" for adversely affected employees, we examine "the effects or foreseeable effects which flow from the exercise of" management's rights, "and how those effects are adverse. KANG, 21 FLRA at 31. See also Naval Facilities Engineering Command, 36 FLRA 834, 841. Proposals that address "purely speculative or hypothetical concerns, or that are otherwise unrelated to management's exercise of its reserved rights," will be excluded from consideration as appropriate arrangements. See Naval Facilities Engineering Command, 36 FLRA at 841. However, where an adverse effect is reasonably foreseeable, and the proposal at issue is intended to be an arrangement for those employees adversely affected, we will consider whether the proposal excessively interferes with management's rights.
The Unions contend that Proposals 3 and 4 are intended to protect employees. The Unions contend that the adverse effects on employees of the Agency's determination as to which weapons are appropriate for authorized off-duty use "is the compromising of [the employees'] safety and well-being by limiting their choices of off-duty armament." Reply Brief at 14. As noted previously, the Agency contends that "concealability is either unnecessary or undesirable . . . ." Statement of Position at 34.
We conclude that the Unions have failed to establish that employees are or would be adversely affected by the Agency's decision to limit the authorization for use of off-duty firearms to certain weapons. As noted above, the Agency's policy does not affect an employees's rights as a private citizen to carry lawful weapons. Employees may, therefore, exercise those rights to carry or continue to carry any lawful weapons. As such, contrary to the Union's argument, we are unable to determine how the Agency's limitations on the weapons that are authorized for off-duty use adversely affects employees' safety and well-being. As no other adverse effect is asserted by the Union or apparent to us, we conclude that Proposals 3 and 4 do not constitute arrangements for adversely affected employees and are, therefore, nonnegotiable.
Moreover, even if we assumed that the proposals constituted arrangements for employees who were adversely affected by the Agency's decision to limit its authorizations for off-duty weapons, we would not find the proposals to be appropriate arrangements. The proposals would effectively negate the Agency's determinations as to the weapons, or categories of weapons, that safely may be used by employees. As such, the proposals would significantly affect the Agency's right to determine its internal security practices. Moreover, as affected employees retain existing rights to carry weapons off-duty, we are unable to conclude that the proposals would provide significant benefits to employees. It is clear, in this regard, that the parties disagree strongly over whether employees are better protected off-duty by concealable weapons. The Union has not asserted, however, that employees would be unable to carry such weapons without Agency authorization. Applying the balancing test set forth in KANG, the burden imposed by Proposals 3 and 4 on the exercise of management's rights to determine its internal security practices under section 7106(a)(1) outweighs the benefits provided employees under the proposals. As a result, the proposals excessively interfere with the exercise of management's right to determine its internal security practices and are nonnegotiable.
VI. Proposal 5
Section 8A(6) (Shooting Incidents)
Employees directly or indirectly involved in a reportable shooting incident or firearms discharge will be afforded the opportunity to consult with a union representative prior to being required to provide a written report or oral statement, other than the initial verbal notification. Absent unusual circumstances, such consultations will not delay the report or statement for more than forty-eight (48) hours, consistent with the appropriate Collective Bargaining Agreement provisions.
[The record is not clear as to whether any of the wording in this proposal was in the Agency's revised policy, or whether this proposal consists entirely of language submitted by the Unions.]
A. Positions of the Parties
1. The Agency
The Agency asserts that Proposal 5 "is not a reiteration of the 'Weingarten' requirement contained in section 7114(a)(2)(B)" of the Statute. Statement of Position at 38. The Agency contends that the proposal would allow an employee entitled to rights pursuant to section 7114(a)(2)(B) "to delay being questioned for more than 48 hours even if the representative is immediately available and the amount of preparation time needed is minimal." Id. The Agency contends that the proposal applies to all employees involved in an incident, even if they have no rights pursuant to section 7114(a)(2)(B), and to any interview, not just those conducted by Agency representatives. With respect to the latter point, the Agency argues that the proposal does not concern a condition of employment because the Agency cannot "enter into an agreement . . . which would delay for 48 hours or more the investigation into a potential crime by state or local police or by Federal investigators." Id. at 44. Finally, the Agency argues that the proposal would "require letting an employee consult with a union representative before making a written statement, which is manifestly not an investigatory interview, and the policy reasons for allowing union representation at investigatory interviews under [section] 7114(a)(2)(B) do not pertain to providing written statements." Id. at 39.
Because, in the Agency's view, the proposal "requires more than the Statute requires," the proposal directly interferes with its rights, under section 7106 of the Statute, to discipline employees, assign work, determine its internal security practices, and take actions in an emergency. With respect to its rights to discipline employees and assign work, the Agency asserts that, "except in degree," this proposal is no different from proposals giving employees "the right to remain silent when being interviewed . . . ." Id. at 41-42. As for the right to determine internal security practices, the Agency argues that the proposal would prevent the Agency from "protecting internal security during the 48-hours period" encompassed by the proposal. Id. at 42. The Agency concludes that the proposal inhibits its ability "to obtain information immediately" in situations where the delay inherent in the proposal "could imperil ongoing operations, evidence, other employees, and the public" and, thereby, prevent management from taking actions "to carry out and maintain the security of [Agency] personnel, equipment, and law enforcement operations." Id. at 42-43. Finally, the Agency contends that shooting incidents constitute "inherent emergenc[ies]" and, as such, the proposal directly interferes with its right to take actions in an emergency. Id. at 43.
The Agency contends that the proposal "is also clearly not intended to be an arrangement for employees adversely affected by the exercise of a management right" because "[p]roviding a right to consult with a representative before management does anything clearly does not satisfy the temporal requirements of [section] 7106(b)(3) [of the Statute.]" Id. at 43-44 (emphasis in original).
Finally, the Agency asserts that "the Union's allegations that the proposal is consistent with existing provisions in the [parties'] collective bargaining agreements is irrelevant." Id. at 37. The Agency asserts that having "agreed to nonnegotiable provisions in the past does not bind an agency to continue to do so . . . ." Id. at 38. The Agency concludes that the Union's assertion is not only irrelevant, but that it is "inaccurate" because neither of the parties' agreements "addresses any right of any bargaining unit employee to 'consult' with anyone[,]" and because "a reporting procedure which is inconsistent with both contracts and is consistent with the reporting procedures in [its new] firearms policy . . . has been in effect since 1986." Id. at 38 n.10.
2. The Unions
The Unions contend that Proposal 5 is consistent with provisions of the parties' existing collective bargaining agreements. Both agreements provide, according to the Union, that "prior to taking a written or sworn statement from an employee . . . he will be advised of his right to be represented by the Union" and that the "failure to obtain representation will not delay the interrogation for more than 48 hours . . . ." Reply Brief at 15.
The Unions assert that the proposal "does not contemplate the right to remain silent during investigative interviews, nor does it interfere with management's ability to conduct an investigation into any matter." Id. at 20. Rather, the Unions contend, their proposal "attempts to ensure that employees are given the opportunity to be properly represented prior to cooperating in investigations . . . ." Id. The Unions assert that the proposal "does not contemplate Union representation for non-Agency investigations of a potential criminal nature." Id. at 22.
The Unions argues that the proposal would not preclude the Agency from requiring employees to provide "basic information" necessary when a firearms discharge incident has occurred. Id. at 19. The Unions point out, in this regard, that the proposal would not, and is not intended, to affect Section 8A(4) of the Agency's firearms policy, which provides:
Any employee who discharges a firearm, or is involved in or observes a reportable shooting incident, shall verbally notify the first-line supervisor as soon as time and circumstances permit, but before the officer goes off duty. This may be accomplished by radio or telephone and will include the following information:
The date, time, and location of the shooting incident.
The individual(s) involved in the shooting.
Any injuries or deaths.
The type of weapon(s) and ammunition used and the number of shots fired, if known.
A brief description of the shooting incident, including any unusual circumstances. (This is not intended to be a comprehensive account of the incident. A more detailed written report of the incident will be completed and submitted within the time frames outlined below.)
Id. at 19-20.
The Unions assert that the proposal "attempts to mitigate the adverse effects of the Agency's right to conduct investigations into the job-related activities of its employees." Id. at 22. The Unions contend that the Agency has used such investigations as a basis "to impose disciplinary actions, including termination of employment," and, that the "adverse effects of such disciplinary actions are incontrovertible." Id. at 23. The Unions assert that their proposal is "procedural" and that it "would not prevent the Agency from acting at all." Id. The Unions conclude that if "a delay of up to 48 hours to conduct an investigative interview would constitute interference with a management right, any such interference would not be excessive, and would be far outweighed by the benefit to both employer and employee of having a knowledgeable Union representative present during the investigative interview." Id. at 23-24.
B. Analysis and Conclusions
For the following reasons, we conclude that Proposal 5 does not directly interfere with the Agency's rights under section 7106 of the Statute. We conclude also that, even if it does so interfere, that interference is so slight that the benefits afforded to unit employees by the proposal strongly outweigh that interference and, as a result, the proposal constitutes an appropriate arrangement. At the outset, we note four things.
First, it is clear that, as asserted by the Agency, Proposal 5 does not constitute a restatement of employee rights under section 7114(a)(2) of the Statute. The proposal would, in this regard, apply to employees both directly and indirectly involved in shooting incidents and the right to Union representation encompassed by the proposal would not depend on an affected employee's belief that he or she was subject to discipline. It is clear also, however, that nothing in section 7114(a)(2) of the Statute prevents unions from negotiating contractual rights to union representation which exceed the rights set forth in that section of the Statute. See American Federation of Government Employees, AFL-CIO, Local 3354 and U.S. Department of Agriculture, Farmers Home Administration, Finance Office, St. Louis, Missouri, 34 FLRA 919, 924 (1990) (Farmers Home Administration) (provision requiring union representation during discussion of "opportunity to improve performance" letter held to be negotiable). See also American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068, 1089 (1990) (portion of proposal requiring management to inform employees that they have a right to union representation at any point in the drug testing process held to be negotiable). Accordingly, we reject the Agency's assertion that the proposal is nonnegotiable merely because it is not a reiteration of the rights granted employees pursuant to section 7114(a)(2) of the Statute.
Second, we reject also the Agency's assertion that the proposal does not constitute a condition of employment because it seeks to bind entities other than the Agency to its terms. Nothing in the proposal, as plainly worded, would bind non-Agency entities. The Union acknowledges as much. Reply Brief at 22. The Agency has not demonstrated that, consistent with its plain wording and the Unions' statement of intent, the proposal does not concern conditions of employment. Moreover, the investigations encompassed, and the Union representation required, by the proposal clearly pertain to unit employee's working conditions and, indeed, flow solely from the employer- employee relationship. We conclude, therefore, that the proposal concerns conditions of employment.
Third, we reject the Agency's assertion that the proposal would provide employees with a "right to delay being questioned for more than 48 hours even if the representative is immediately available and the amount of preparation time needed is minimal." Statement of Position at 38. The Agency's assertion reflects a fundamental misunderstanding of the proposal, in our view. The proposal, by its plain terms, provides employees "the opportunity to consult with a union representative prior to being required to provide a written report or oral statement, other than the initial verbal notification." Although the proposal also provides that such consultation "will not delay the report or statement for more than . . . 48 hours," it is clear that purpose of the proposal is to facilitate union representation, not to delay the Agency's investigation. In fact, as stated by the Union, "the maximum (except in unusual circumstances) 48 hour period is to obtain a representative" and "[o]nce a representative arrives, the clock stops." Reply Brief at 21 (emphasis in original). The Unions acknowledge, in this regard, that "[i]n most situations, [the] delay would be minimal." Id. at 23. Moreover, the Union states that the proposal would apply only if (1) the Agency required a statement and (2) the affected employee requested representation. Id. at 17. Stated simply, the proposal, as plainly worded and consistent with the Unions' stated intent, facilitates union representation and would not guarantee employees a 48-hour delay before participating in Agency investigations.
Fourth and finally, we reject the Agency's assertion that the proposal is "no different, except in degree, from union proposals which would give employees the right to remain silent . . . ." Statement of Position at 41-42. Nothing in the proposal would enable an employee to refuse to answer Agency inquiries, whether orally or in writing. The Unions specifically concede, in this regard, that the proposal "does not contemplate the right to remain silent during investigative interview . . . ." Reply Brief at 20. Moreover, as the Agency acknowledges, the proposal would not affect the Agency's rights to enforce compliance with section 8(A)(4) of its firearms policy. As such, the Agency would be entitled to information which, by its terms, includes the date time and location of the shooting incident, the individuals involved, information concerning injuries, deaths, and types of weapons and ammunition used, and a brief description of the incident, including any unusual circumstances. Id. at 19-20. There is, quite simply, no basis on which to conclude that the proposal would enable an employee to remain silent in such a circumstance and, more importantly, the proposal would not interfere with the Agency's ability to require all employees immediately to provide information concerning the incident.
Interpreted in light of the foregoing, we conclude that the proposal would not directly interfere with the Agency's rights to discipline employees, assign work, determine its internal security practices, and take actions in emergencies. As stated previously, the proposal would only provide employees with an opportunity to consult with a union representative before providing a written report or oral statement. The proposal would not provide employees with a right to remain silent, and would require only such delay in the Agency's investigation as was necessary, up to 48 hours except in unusual circumstances, to facilitate that representation. Moreover, the proposal would not affect the Agency's enforcement of its regulatory requirement that employees immediately provide information concerning a shooting incident.
The Agency has not demonstrated that, in view of its plain wording and the Union's statement of intent, providing employees with Union representation, including time necessary to effect that representation, directly interferes with its rights under section 7106 of the Statute. In particular, the Agency has not demonstrated, and it is not otherwise apparent to us, that the proposal would preclude the Agency from disciplining employees (for the underlying conduct or for failure to cooperate in an investigation), or for requiring employees to cooperate in such an investigation, including the requirement that employees respond to Agency inquiries. Moreover, the Agency has not asserted or demonstrated that, in view of the Union's interpretation of the proposal, the proposal would directly interfere with its rights to determine its internal security practices or to take action in an emergency. Indeed, common sense dictates that there is some delay between the occurrence of a shooting incident and the Agency's conduct of an investigation. The Agency does not assert otherwise. As the proposal encompasses only such time as necessary to facilitate Union representation, we have no basis on which to conclude that, as a practical matter, the proposal directly interferes with the Agency's rights. We conclude, therefore, that the proposal is negotiable.
Moreover, even if Proposal 5 did, in some circumstances, directly interfere with the Agency's rights, the proposal does not excessively interfere with the rights. The proposal would only facilitate Union representation. After consultation with a Union representative, if requested by an employee, the Agency could require employees to participate fully and completely in any investigation it conducted. Indeed, even before such consultation occurred, the Agency would be privileged to require affected employees to provide information regarding a shooting incident. The proposal would not, in this regard, significantly affect the Agency's rights to investigate shooting incidents and take actions resulting from its investigations. As such, the benefits to employees, which in our view include the facilitation of consultation with the employees' recognized bargaining representative as well as the ability to use a minimal amount of time to do so, strongly and clearly outweigh such minimal affects on the Agency's rights. Accordingly, even if the proposal were held to directly interfere with the Agency's rights, it would constitute a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
Accordingly, we conclude that Proposal 5 is negotiable.
VII. Proposal 6
Section 12- (Approved Personally-owned Firearms)
NOTE: Officers who are currently carrying previously authorized personally-owned double-action handguns which do not meet the above criteria may continue to carry those handguns until such time as a Service-issued semi-automatic handgun is actually made available. Effective immediately, previous authorizations to carry personally-owned single-action semi-automatic pistols are rescinded. Under no circumstances will a single action semi-automatic be authorized for carry.
[The Unions propose to delete the underscored portions from the Agency's revised policy.]
A. Positions of the Parties
1. The Agency
The Agency asserts that its revised firearms policy "would have applied only to double-action handguns and therefore would not have allowed the continued authorized carrying of single-action handguns off-duty." Statement of Position at 46 (emphasis in original). According to the Agency, its objection to single-action handguns "rests upon the possibility of accidental discharges when the weapon is carried for use." Id. at 48. The Agency asserts, in this regard, that similar to Proposals 3 and 4, this proposal directly interferes with its rights to determine its internal security practices and its right to determine the methods, means, and technology of performing work.
The Agency states that as part of the implementation of the prohibition on single-action handguns, it is "making a double[-]action . . . a standard . . . handgun and will be procuring these weapons for employees as well as authorizing employees to continue carrying such handguns which are personally owned." Id. at 49. The Agency argues that, as employees are not required to carry privately-owned weapons, its rescission of authority to carry single-action handguns, both on- and off-duty, does not adversely affect employees.
2. The Unions
The Unions assert that they seek to delete the underscored portion of the proposal in an "attempt[] to ameliorate the adverse effects of the rescission of authorization to carry single-action semi-automatic pistols." Reply Brief at 24. The Unions contend that the proposal "merely seeks to have the Agency replace the unauthorized semi-automatic pistol with an authorized semi-automatic pistol." Id. at 25. The Unions contend that the Agency has agreed to allow employees currently authorized to carry personally-owned double-action semi-automatic firearms not meeting the Agency's new standards for firearms to continue the authorized use of those weapons until such time as they are replaced by an Agency-issued firearm meeting the Agency's new standards. The Unions argue that the Agency should extend the same prerogatives to those employees using privately-owned single-action semi-automatic firearms.
The Unions concede that the proposal "interferes with management's right to determine [the] technology, methods, and means of performing work," but contend that "the degree of interference is not excessive." Id. The Unions conclude that the benefit to employees of having the Agency replace their firearm at the Agency's expense "far outweighs any temporary inconvenience that the Agency might experience." Id. Additionally, the Unions argue that "the balance weighs heavily in favor of allowing employees to continue carrying such weapons until such time as the Agency is able to offer suitable replacement weapons." Id.
B. Analysis and Conclusions
Based on the record as a whole, we conclude that Proposal 6 addresses privately-owned weapons used by employees both on- and off-duty. That is, it appears that, in addition to off-duty use, employees have been authorized by the Agency to use privately-owned weapons during their regular duty time. The Agency's revised firearms policy rescinds authorization for use, both on- and off-duty, of all single-action handguns. It appears also, from the plain wording of the Agency's revised policy, that some personally-owned double-action handguns are no longer authorized. Consistent with the policy, however, employees who carry such privately-owned double-action handguns are authorized to continue to carry them until such time as Agency-issued weapons are made available. The Unions' proposal would, in this regard, extend the same authorization to owners of the now-prohibited single-action handguns.
As so interpreted, the practical effect of Proposal 6 is the same as the effects of Proposals 3 and 4. That is, Proposal 6 would, like those proposals, require the Agency to authorize the use of certain weapons (single-action handguns) which it has determined are unsafe and unsuitable for its operations. For the reasons expressed fully in connection with Proposals 3 and 4, therefore, we conclude that Proposal 6 directly interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. In view of our conclusion, we do not address the Agency's additional arguments.
The Unions assert that the proposal constitutes an appropriate arrangement for employees who are adversely affected by the Agency's rescission of their authorization to carry a privately owned single-action semi-automatic firearm. Therefore, we turn to the question as to whether Proposal 6 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.
As we discussed earlier, we apply the KANG standards to determine whether the proposal constitutes an appropriate arrangement. More particularly, in determining, as a threshold matter, whether a proposal is an "arrangement" for adversely affected employees, we examine "the effects or foreseeable effects which flow from the exercise of" management's rights, "and how those effects are adverse." KANG, 21 FLRA at 31. See also Naval Facilities Engineering Command, 36 FLRA 834, 841. Proposals that address "purely speculative or hypothetical concerns, or that are otherwise unrelated to management's exercise of its reserved rights," will be excluded from consideration as appropriate arrangements. See Naval Facilities Engineering Command, 36 FLRA at 841. However, where an adverse effect is reasonably foreseeable, and the proposal at issue is intended to be an arrangement for those employees adversely affected, we will consider whether the proposal excessively interferes with management's rights.
The Unions contend that the Agency's decision to rescind authorization to carry single-action semi-automatic pistols "would impose a severe financial hardship for those employees currently authorized to carry such weapons, as the Agency is unwilling to provide replacement semi-automatic pistols of any type." Reply Brief at 24. The Unions further assert, in this regard, that the Agency "currently does not have any replacement semi-automatic pistols to offer." Id.
We conclude that the Unions have failed to establish that employees would be adversely affected by the Agency's decision to no longer authorize the use of privately-owned single-action handguns. It is undisputed in the record before us that employees are not required to purchase or use privately-owned handguns. Although it appears that some employees desire to carry a privately-owned weapon, and that the Agency recognizes the practice by authorizing the use of such weapons, the Unions have failed to demonstrate that the continued authority to use a privately-owned weapon of their choice is a necessity in order for employees to fulfill their job requirements. Moreover, consistent with our discussion of Proposals 3 and 4 insofar as they related to off-duty use of handguns, nothing in the Agency's policy would affect employees' rights to carry single-action handguns off-duty. Put simply, the Unions have not supported their assertion that rescission of authority to use privately-owned single-action handguns would result in financial hardship to employees or otherwise would affect them adversely.
As the Unions have failed to demonstrate that employees would be adversely affected by the Agency's decision to no longer authorize the use of privately-owned single-action semi-automatic pistols, we conclude that Proposal 6 does not constitute an "arrangement" within the meaning of section 7106(b)(3) of the Statute. Accordingly, Proposal 6 is nonnegotiable.
Moreover, we conclude that, even if it could be demonstrated that the Agency's decision to no longer authorize the use of privately-owned single-action handguns has an adverse effect, or reasonably foreseeable adverse effect, on employees, Proposal 6 is not an appropriate arrangement. Like Proposals 3 and 4, Proposal 6 would require the Agency to allow employees to continue to use weapons which the Agency has decided are no longer appropriate or safe. As there is no indication that employees are required to carry privately-owned handguns on duty, and as employees would retain all existing rights to carry such handguns off duty, we conclude that the minimal benefits to employees are offset by the negative impact on management's right to determine its internal security practices. As such, Proposal 6 excessively interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
VIII. Order
The petition for review is dismissed insofar as it pertains to the first sentence of Proposal 1, the first four sentences of Proposal 2, and Proposals 3, 4, and 6. The Agency shall, upon request, or as otherwise agreed to by the parties, bargain over the balance of Proposals 1 and 2, and over Proposal 5.(2)
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1. Although the Agency does not dispute the Authority's jurisdiction over the petition for review, the Agency asserts that this case requires two separate case numbers because the petition for review was filed on behalf of two separate exclusive representatives. We reject the Agency's assertion. The Border Patrol is a subsidiary of the Immigration and Naturalization Service (INS). In addition, the INS' revision of its firearms policy was applicable to both units and the parties jointly negotiated over the proposed changes. Finally, although the Agency asserts that there are conditions specific to each unit which might require different conclusions as to the negotiability of the disputed proposals, neither party makes any arguments in this case which are specific to either unit. Therefore, we conclude that it is appropriate to issue one decision covering both units.
2. In finding these proposals and portions of proposals to be negotiable, we make no judgment as to their merits.