[ v40 p902 ]
40:0902(74)NG
The decision of the Authority follows:
40 FLRA No. 74
Before Chairman McKee and Members Talkin and Armendariz.
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). The case concerns the negotiability of three proposals relating to the forms that employees are required to complete in order to retain their security clearances.
Proposal 1 requires training for supervisors who review unit employees' personnel security questionnaires. We find that Proposal 1 is negotiable. Proposal 2 provides that unit employees will be trained in completing the requirements of the security questionnaires. We find that Proposal 2 is negotiable. Proposal 3 restricts supervisory review of employees' security forms and provides that employees will be given any information supplied by supervisors when reviewing those forms. We find that the first paragraph of Proposal 3 is nonnegotiable and the second paragraph is negotiable.
II. Preliminary Matter
The Agency contends that it has no duty to bargain over the proposals because the subject matter involved is governed by the parties' collective bargaining agreement. According to the Agency, "Article 3-3c provides that the [a]greement may not be modified except by mutual consent of the parties." Agency Statement of Position (Statement) at 4. The Agency contends that the Union seeks to modify the agreement by negotiating an amendment regarding a practice that was in existence at the time the agreement was negotiated. The Agency asserts that there has been no change in the process by which security clearances are granted, including the review of Personnel Security Questionnaires by supervisors. The Agency contends, therefore, that the proposals "would constitute a change in the provisions of the agreement contrary to Article 3-3c." Id. The Union did not address this contention.
The Agency's contention does not provide a basis for dismissing the petition. Under section 7117(c) of the Statute and Part 2424.1 of the Authority's Regulations, the Authority will consider a petition for review of a negotiability issue only where the parties disagree over whether a proposal conflicts with law, rule or regulation. See American Federation of Government Employees, AFL-CIO, National Council of Field Labor Locals, Local 3181 and U.S. Department of Labor, Mine Safety and Health Administration, 32 FLRA 1214, 1217 (1988). Therefore, under section 2424.1 of our regulations, when the parties are in dispute as to whether a proposal is inconsistent with law, rule or regulation, that dispute is properly before us.
Moreover, it is well established that where the conditions for review of a negotiability appeal have been met, a union is entitled to a decision from us on whether a disputed proposal is negotiable under the Statute, although additional issues may exist, including whether an agency is obligated to bargain under the terms of a master agreement. See American Federation of Government Employees, Local 2736 v. FLRA, 715 F.2d 627, 631 (D.C. Cir. 1983). Consequently, to the extent that issues exist regarding the Agency's duty to bargain on the proposals, such issues should be resolved in other appropriate proceedings. See National Federation of Federal Employees, Local 341 and U.S. Department of the Interior, Bureau of Indian Affairs, Wapato, Washington, 39 FLRA 1272, 1275 (1991); American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984). Accordingly, the claimed existence of threshold duty to bargain questions does not preclude us from determining the negotiability of proposals that are otherwise properly before us.
The dispute in this case concerns whether the proposals are inconsistent with law. Consequently, we find that the conditions governing review of negotiability issues, as described in section 2424.1 of our Regulations, have been met and we conclude that the proposals are properly before us.
III. Proposal 1
SUPERVISORY TRAINING:
The employer will provide appropriate training to supervisory personnel who are required to review employee 5 year update background investigation forms [Personnel Security Questionnaire]. The Union will designate one unit employee as an observer to this training session to enable the Union to be knowledgeable of the specifics of the training. The Union will be notified in writing at least 10 working days in advance of the scheduled training.
At no time during the review of the said form by the supervisor will the material be in [an] unsecured location where unauthorized employees may have access to this data.
[Only the first paragraph is in dispute.]
A. Positions of the Parties
1. Agency
The Agency states that it is "an inherent part of the Department of Defense intelligence community." Statement at 11. The Agency also states that it is engaged in work that is classified in the interest of national security. According to the Agency, "[s]ome ninety percent of its employees occupy sensitive positions and are required to have a security clearance." Id. In particular, at its Louisville Office, the Agency claims that it employs some 300 employees, of whom approximately 250 are represented by the Union.
The Agency states that unit employees performing classified work must obtain and maintain a security clearance. Periodically, according to the Agency, employees are required to complete a Personnel Security Questionnaire (BI/SBI) (DD Form 398), which contains questions concerning an individual's personal life. The form contains questions pertaining to an individual's drug use, medical and psychological history, financial history, criminal record, organizational memberships, residences, as well as other questions. The Agency states that this form is used by a "security specialist to assist in determining if an employee should be granted a security clearance, or denied a security clearance or whether an existing security clearance [should] be continued or revoked." Id. at 2.
The Agency states that "[s]upervisors are also required to review the DD Form 398 to determine its accuracy (to the extent of their knowledge) and for the purpose of recommending whether a security clearance [should] be granted or denied, or continued or revoked." Id. This supervisory review is accomplished by completion of DMA Form 5200-6, "Defense Mapping Agency Supervisory Review of Security Forms."(1) Id.
The Agency contends that the part of Proposal 1 "which prescribes supervisory training" is nonnegotiable because it: (1) does not involve a condition of employment affecting unit employees within the meaning of section 7103(a)(14) of the Statute; and (2) directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Id. at 11. The Agency also contends, without explanation, that the first paragraph of Proposal 1 directly interferes with its right to determine its internal security practices under section 7106(a)(1).
Specifically, the Agency states that "[p]roposals regarding the training and other working conditions of non-bargaining unit employees (including supervisors) do not address the working conditions of bargaining unit employees." Id. at 4. Citing Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986) (Antilles), the Agency contends "that there is no direct connection between the proposal and the work situation or employment relationship of bargaining unit employees." Statement at 5. The Agency states that the disputed portion of the proposal deals with employees outside the bargaining unit--supervisors--and attempts to negotiate the working conditions of those employees.
The Agency contends that the Authority's decision in Fraternal Order of Police Lodge IF (R.I.) Federal and Veterans Administration, Veterans Administration Medical Center, Providence, Rhode Island, 32 FLRA 944 (1988) (Veterans Administration Medical Center), and certain other Authority decisions pertaining to supervisors or non-bargaining unit employees, support its position that the proposal does not concern a condition of employment affecting unit employees because it deals with a working condition of supervisors.
The Agency also cites the Authority's decision in American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 33 FLRA 335 (1988) (Office of Personnel Management), enforced sub nom. United States Office of Personnel Management v. FLRA, 905 F.2d 430 (D.C. Cir. 1990). In that case, the Authority set forth the test for determining whether proposals concerning conditions of employment of unit employees that also affect employees or positions outside the unit are within the scope of the duty to bargain. According to the Agency, the Authority's decision in Office of Personnel Management is not "applicable" to Proposal 1 because the proposal "deals exclusively with supervisory positions outside the bargaining unit." Statement at 5.
As to management's right to assign work under section 7106(a)(2)(B) of the Statute, the Agency contends that the Authority has "consistently held that training constitutes the assignment of work and that union proposals which mandate the training of employees constitutes excessive interference with the reserved management right to assign work pursuant to section 7106(a)(2)(B) of the Statute." Id. at 9. The Agency further contends that "there is no adverse impact on the affected employee" and, therefore, the proposal can not be considered an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Id. at 10.
2. Union
The Union contends that the proposal concerns a "working condition" of unit employees because the employees must obtain and maintain a security clearance in order to perform their jobs. Response at 3. The Union also contends that unit employees temporarily promoted to supervisory positions also review DD Form 398. The Union argues that the performance of this additional responsibility affects the working conditions of those temporarily assigned employees.
The Union states that at the time of its proposal, supervisors, including temporarily promoted unit employees, were reviewing DD Form 398 with no specific training or instructions. According to the Union, supervisors were "performing a task that concerned a critical requirement" for unit employees "without any knowledge or training." Id.
The Union contends that its proposal constitutes a negotiable procedure under section 7106(b)(2) or, alternatively, a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. The Union asserts that its proposal requires the Agency to provide training so that unit or non-unit employees "can carry out [the security] review function." Id. The Union argues that it is "not mandating [the] type of training or a specific number of hours but is relying on management[']s judgment for appropriate training." Id. The Union states that it is "aware that management requires the personnel in security to [receive] training to perform their security function," and that such personnel are "very well trained." Id. Because security personnel receive training in the review function, the Union contends that its proposal to extend that training to supervisors who review unit employees' security forms is "appropriate." Id.
According to the Union, a supervisor, through review of an employee's security form, could learn "confidential information" about the employee that could have a "chilling effect on the employee's career progression, performance appraisal, training recommendations, travel, etc." because of the supervisor's role in making those decisions. Id. The Union asserts that employees' "privacy rights" must be balanced against management's rights. Id. The Union states that the Authority "should rule in favor of the privacy rights of the employees." Id.
B. Analysis and Conclusions
1. Proposal 1 Concerns a Matter That Vitally Affects the Conditions of Employment of Unit Employees
The Agency contends that the disputed part of Proposal 1 is nonnegotiable because it concerns solely the working conditions of nonunit employees and, therefore, does not involve conditions of employment of unit employees within the meaning of section 7103(a)(14) of the Statute. We disagree.
The fact that a proposal has an effect on the working conditions of nonunit employees is not in and of itself determinative of the negotiability of the proposal. See National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Louisville, Kentucky, 39 FLRA 1169, 1187 (1991) (Defense Mapping Agency, Louisville, Kentucky), petition for review filed sub nom. United States Department of Defense, Defense Mapping Agency, Louisville, Kentucky v. FLRA, No. 91-1217 (D.C. Cir. May 10, 1991) (proposal prescribing procedures for designation of unit employee as supervisory backup held to "vitally affect" conditions of employment of unit employees). Rather, such a proposal is negotiable under the Statute if it (1) vitally affects the working conditions of unit employees and (2) is consistent with applicable law, including the management rights provisions of section 7106 of the Statute, and regulations. Id. A proposal having an effect on nonunit employees will be found to "vitally affect" the conditions of employment of unit employees if the effect of that proposal upon unit employees' conditions of employment is "significant and material, as opposed to indirect or incidental." Id., quoting International Association of Machinists and Aerospace Workers, Local Lodge 2297 and U.S. Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina, 38 FLRA 1451, 1455 (1991).
We find that Proposal 1 vitally affects the conditions of employment of unit employees because we conclude that the effects of the proposal on those employees are significant and material. The proposal would require the Agency to provide appropriate training to supervisors who are required to review employees' 5-year updates of DMA Form 398. Supervisors are required to review this form for accuracy and for the purpose of recommending whether an employee's security clearance should be granted, denied, continued, or revoked. Because unit employees perform classified work, they must obtain and maintain a security clearance in order to perform their jobs and without such a clearance, they would be subject to removal. See, for example, Benoist v. Department of Defense, 40 MSPR 418 (1989) (Benoist), affirmed, 895 F.2d 1420 (Fed. Cir.) (unpublished) (per curiam), cert. denied, 110 S. Ct. 2598 (1990) (security clearance of employee holding secret clearance revoked and employee removed from position after agency, following interview of employee and review of security forms, determined that employee failed to provide complete and accurate information on DD Form 398).
The accuracy and validity of the supervisory review of employees' security forms is dependent on the ability of the supervisor to accomplish that review and to fill out the supervisory review forms correctly and completely. Mistakes by supervisors in performing this review could result in the revocation of an employee's security clearance and the loss of the employee's job. Consequently, we find that employees have a direct and substantial interest in the ability of their supervisors to correctly and completely perform their security review functions. We conclude, therefore, that training for supervisors who review employees' personal security forms is a matter that vitally affects unit employees' conditions of employment. See Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783, 834-35 (1991) (Patent and Trademark Office), petition for review filed sub nom. Department of Commerce, Patent and Trademark Office v. FLRA, No. 91-1179 (D.C. Cir. April 17, 1991) (proposal which required agency, among other things, to train supervisors in evaluation of unit employees' work found to concern matters that vitally affect the conditions of employment of unit employees under section 7103(a)(14) of the Statute).
Consequently, as the first paragraph of Proposal 1 vitally affects the conditions of employment of unit employees, it is negotiable unless it is inconsistent with law, rule and regulation. We turn, then, to the question of whether the proposal conflicts with management's right to assign work under section 7106(a)(2)(B) of the Statute.
2. Proposal 1 Directly Interferes with Management's Right to Assign Work Under Section 7106(a)(2)(B)
Proposals that require management to assign training to particular employees, including supervisors, directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, Patent and Trademark Office, 39 FLRA at 835-36 (proposal requiring corrective action, such as training of supervisors and reviewers, directly interferes with management's right to assign work under the Statute). See also U.S. Army Transportation Center, Fort Eustis, Virginia, 33 FLRA 391, 395 (1988) (a requirement to assign training to particular employees, including supervisors, is inconsistent with management's right to assign work).
The disputed language in Proposal 1 would require the Agency to provide training to supervisors who are required to review employees' updated personal security forms--DD Form 398. Because the disputed language dictates the assignment of training to supervisors, it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.
We find that Proposal 1 is distinguishable from the first two sentences of Proposal 2 in American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic-Topographic, Washington, D.C., 39 FLRA 557 (1991) (Defense Mapping Agency). The first two sentences of that proposal required the agency to conduct classes for employees to explain the agency's drug testing program. We held that the proposal was negotiable because the information to be provided in those classes: (1) concerned bargaining unit employees' conditions of employment and (2) was disclosable to employees. We also noted that the training required by the proposal did not constitute instruction for employees as to how to perform the official duties of their positions.
Proposal 1, however, concerns the training of supervisors in one of the responsibilities of their jobs, namely, reviewing the security forms of the employees under their supervision. As such, unlike Proposal 2 in Defense Mapping Agency, there is a direct connection between the training for supervisors required by Proposal 1 and the duties of supervisory positions. Accordingly, by requiring that training, the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. See American Federation of Government Employees, Local 2031 and U.S. Department of Veterans Affairs, Medical Center, Cincinnati, Ohio, 39 FLRA 1155, 1157-58 (1991). Because Proposal 1 concerns only the training of supervisors in the performance of a specific duty of their positions, we do not address the extent to which other proposals relating to training would directly interfere with the right to assign work under section 7106(a)(2)(B) of the Statute. See Defense Mapping Agency, 39 FLRA at 566.
3. Proposal 1 Does Not Directly Interfere with Management's Right to Determine Its Internal Security Practices
We conclude that Proposal 1 does not directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
Management's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the right to determine the policies and actions that are a part of its plan to secure or safeguard the personnel and the physical property of the Agency. See American Federation of Government Employees, Local 1482 and U.S. Department of the Navy, United States Marine Corps Logistics Base, Barstow, California, 40 FLRA 12, 15 (1991) (United States Marine Corps Logistics Base, Barstow, California). The proposal, however, does not affect management's decision as to the policies and actions that it will adopt to safeguard the personnel and the property of the Agency. The proposal only requires that once management has determined what those policies will be, insofar as they concern the granting of security clearances, management will train supervisors in the implementation and application of those policies in the review of employee personnel security forms.
Consequently, we find that there is nothing in the proposal that addresses management's right to determine its internal security practices insofar as that right includes the right to deny or revoke security clearances. Under the proposal, the Agency would be free to exercise the full range of its discretion with regard to security clearances for affected employees. Accordingly, we conclude that the disputed language does not interfere with the Agency's right to determine its internal security practices under section 7106(a)(1).
4. Proposal 1 Does Not Constitute a Negotiable Procedure under Section 7106(b)(2) of the Statute
Because we have found that the disputed language of Proposal 1 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute, we reject the Union's contention that the proposal constitutes a negotiable procedure under section 7106(b)(2). A proposal that directly interferes with a management right does not constitute a negotiable procedure under section 7106(b)(2). See Department of Defense, Army-Air Force Exchange Service v. FLRA, 659 F.2d 1140, 1150-52 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982). Accordingly, we conclude that Proposal 1 does not constitute a negotiable procedure. Proposal 1, therefore, is nonnegotiable unless it constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
5. Proposal 1 Is an Appropriate Arrangement Under Section 7106(b)(3) of the Statute
The Union claims that the disputed language of Proposal 1 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. To determine whether the disputed language 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 rights. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard).
In determining whether a proposal is an arrangement for employees adversely affected by the exercise of management's rights, we look to "the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse." Id. at 31. The Union contends that the proposal is intended to mitigate the adverse effect of supervisory review of employees' DD Forms 398. The Union states that at times "59%" of the supervisory positions have been filled by "temporary promotion[s] or detail[s] by unit employees." Response at 3. According to the Union, DD Form 398 concerns the retention of security clearances, which is a critical requirement for unit employees, and temporary supervisors review that form "without any knowledge or training." Id. The Union asserts not only that a supervisor's input could have a "chilling effect" on an employee's career progression but also that the supervisor could, through such review, learn confidential information about the employee that could affect the supervisor's view concerning the employee's work assignments. Id.
In our view, it is reasonably foreseeable that employees' working conditions and employment relationship could be adversely affected by the assignment of supervisors lacking experience and knowledge to review employees' DD Form 398. As noted above, a supervisor's review and recommendation plays an important part in the determination of whether employees' security clearances are continued or revoked. We conclude, therefore, that by requiring the Agency to provide appropriate training to supervisory personnel required to review DD Form 398, Proposal 1 is intended to address the adverse effects resulting from the Agency's assignment of that review function to supervisors. We find, therefore, that the proposal constitutes an arrangement within the meaning of section 7106(b)(3) of the Statute.
We turn, then, to the question of whether the disputed language in Proposal 1 constitutes an appropriate arrangement or whether it excessively interferes with management's right to assign work. In order to determine whether the disputed language excessively interferes with the management right, we must determine whether the burden placed on the management right is disproportionate to the benefits to employees conferred by the proposal. See Kansas Army National Guard, 21 FLRA at 33.
The proposal requires "appropriate" training for supervisors whose assigned work requires them to review employees' personal security forms or DD Form 398. The Union points out that as a result of temporary promotions, a high percentage of bargaining-unit employees have performed supervisory duties, including reviewing DD Form 398. The Union further contends that it has received employee "complain[ts]" concerning supervisory review of the forms and that the review of the forms by supervisors has been "upsetting" to unit employees. Response at 2. The proposal, therefore, is intended to benefit employees by providing them with assurance that a function critical to their continued ability to perform classified work is being performed by individuals who have knowledge of the security review process. More specifically, having individuals who know this process would benefit employees by assuring that: (1) this "critical" function would be conducted fairly; (2) employees would not be disadvantaged by an individual's lack of knowledge of the review process; and (3) "confidential" information would be handled properly. Id. at 3.
We note that, consistent with the Union's statement, the proposal does "not mandat[e the] type of training or a specific number of hours but is relying on management[']s judgment for appropriate training" of its supervisors in the review process. Id. The proposal would only require management to provide "appropriate" training for supervisors who review DD Form 398. The Agency, therefore, retains the discretion to determine the necessary training requirements. Moreover, according to the Union's uncontroverted assertion, "management requires the personnel in security [who also review DD Form 398] to [receive] training to perform their security function." Id. Consequently, the Agency could, in its discretion, provide supervisors training similar to that provided security personnel.
We conclude that the benefit provided to employees by having their personnel security forms reviewed by supervisors who have been trained to perform that function outweighs the burden imposed on management's right to assign work by requiring management to provide training to supervisors. As noted, the Agency retains discretion as to the content, duration, and timing of that training. In our view, therefore, Proposal 1 does not excessively interfere with management's right to assign work.
Accordingly, because we find that Proposal 1 does not excessively interfere with management's right to assign work under section 7106(a)(B)(2), we conclude that the proposal is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. See, for example, Patent and Trademark Office, 39 FLRA at 836-38 (proposal requiring training of supervisors and reviewers constituted a negotiable appropriate arrangement under section 7106(b)(3)).
In finding Proposal 1 to be negotiable, we note that the Agency has not raised any specific objections to that part of the proposal which provides for a Union observer to be present at the training sessions. The Agency has not alleged how this part of the proposal would conflict with any law or regulation. In the absence of any specific arguments by the Agency and because we find nothing in the record to show that this part of the proposal is contrary to law or regulation, we find it to be negotiable.
IV. Proposal 2
EMPLOYEE TRAINING:
The employer will provide adequate training or instruction so that unit employees can understand the intent of the various questions on 5 year background investigation forms. This training/instruction will clearly indicate:
If the requested information is for the previous 5 or 15 years, or the entire life of the employee, for each question.
[Only the first paragraph is in dispute.]
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 2 is nonnegotiable because it would directly interfere with its right to assign work under section 7106(a)(2)(B) of the Statute. In support of its position, the Agency raises the same arguments concerning its right to assign work as mentioned in Section III.A.1., above. The Agency further contends that "there is no adverse impact on the affected employee" and, therefore, the proposal cannot be considered an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Statement at 10.
2. Union
The Union contends that Proposal 2 does not infringe on management's right to assign work under section 7106(a)(2)(B) of the Statute, but instead constitutes a negotiable procedure under section 7106(b)(2) of the Statute. The Union also contends that even if the proposal infringes on management's right to assign work, it is a negotiable appropriate arrangement for employees adversely affected by the exercise of that right.
The Union argues that, based on conversations with certain managers, there are "at least 3 separate interpretations" as to the type of information--based on a certain time frame--that employees should list on DD Form 398. Response at 4. Given the various interpretations by management, the Union claims that an employee "has no idea what the form means." Id. According to the Union, "if an employee omits information that [management thinks] should have been [listed] ([due] to time frame interpretations)[,] the employee could easily lose [his or her] security clearance [and] job by being falsely accused of falsification of documents." Id. The Union asserts that it is "reasonable" for management to inform an employee through training of what is required in order to retain a security clearance. Id.
B. Analysis and Conclusions
We conclude that Proposal 2 does not directly interfere with the Agency's right to assign work.
As noted above, the first two sentences of Proposal 2 in Defense Mapping Agency required that the agency provide "classes" explaining various aspects of the drug testing program for all unit employees subject to drug testing. The agency argued that the disputed proposal directly interfered with its right to assign work because it required the agency to train employees.
In Defense Mapping Agency, we noted that most previous Authority decisions involving "training" had addressed "proposals requiring an agency to provide, or seek[ing] to limit or preclude the agency from providing, employees with instruction on how to perform various duties and responsibilities." 39 FLRA at 560. We noted other Authority decisions holding that "proposals requiring only that an agency provide employees with information, or notify employees of various actions, do not directly interfere with management's rights and are negotiable as long as the proposals concern conditions of employment and do not require the release of information which otherwise is protected." Id. at 561.
In that case, we further noted that the classes required by the proposal did not, and were not intended to, encompass instruction of employees in any facet of the duties and responsibilities of their jobs. We found no indication that: (1) the classes were designed to teach employees who have responsibilities in the drug testing program how to accomplish those responsibilities; (2) the information was intended directly to affect, or that it would directly affect, employees' work performance; and (3) the information was intended to "increase the knowledge, proficiency, ability, skill and qualifications" of unit employees "in the performance of official duties" within the meaning of the definition of training under 5 U.S.C. § 4101(4). Id. at 563.
Rather, in our view, the classes required by the proposal "constitut[ed] only the vehicle by which information [could be conveyed] to employees." Id. Noting, among other things, that the disputed sentences did not encompass instruction on employees' duties and responsibilities, we concluded that "the requirement that information be conveyed in classes [did] not otherwise mandate a conclusion that the proposal directly interfere[d] with the [a]gency's right to assign work." Id. at 564.
Proposal 2 concerns matters relating to "background investigation forms"--DD Form 398--that employees must complete in order to maintain their security clearances. Specifically, Proposal 2 requires training of unit employees on the requirements of DD Form 398. Like the disputed sentences in Defense Mapping Agency, there is no indication in the record that the proposal, unlike Proposal 1 above, is intended to encompass instruction to employees on facets of their duties and responsibilities. Although Proposal 2 refers to "training" and "instruction," the proposal only requires that information be conveyed to employees concerning the various questions contained on DD Form 398. As in Defense Mapping Agency, there is no indication that the information conveyed by the "training" referred to in the proposal is intended to increase the knowledge, proficiency, ability, skill and qualifications of unit employees in the performance of their official duties.
Moreover, nothing in the record before us supports a conclusion that the proposal would require the disclosure of information in violation of law. We note that the Department of Defense Personnel Security Program Regulation, 5 C.F.R. Part 154, provides specific information with respect to the security program, including information pertaining to the scope of the investigation, personal interviews, periodic reinvestigations, and the reporting of information. See 5 C.F.R. Part 154 APP A, B, D and F.
Consequently, consistent with Defense Mapping Agency, we find that Proposal 2 does not directly interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute and conclude, therefore, that the proposal is negotiable.
V. Proposal 3
SUPERVISORY REVIEW OF BACKGROUND INVESTIGATION FORMS:
In the event an employee has portions of the said form [DD Form 398] which they object to having their supervisor review, then the employee will omit that information and have it placed on the form at the time of the security interview.
[A] unit employee, upon request, will be given an unsanitized copy of DMA Form 5200-6 (or equivalent form) and all statements and attachments related to the form provided by their supervisor. The request will be delivered to the employee within 10 calendar days of the request.
This article when agreed to locally and signed by both parties, will be executed and sent for review by the head of the Agency by the third working day after the local signature.
[Only the first and second paragraphs are in dispute.]
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 3 is nonnegotiable because it interferes with management's rights: (1) to determine its internal security practices under section 7106(a)(1); (2) to determine the technology, methods, and means of performing work under section 7106(b)(1); and (3) to assign work under section 7106(a)(2)(B) of the Statute.
The Agency states that the "granting or denial of security clearances is an integral part of the Agency's plan to prevent the unauthorized disclosure of classified defense information and to protect the national defense." Statement at 6. The Agency also states that the review of the Personnel Security Questionnaire and the completion of DMA Form 5200-6 by supervisors is a "continuing part of the investigatory procedures to ensure that employees meet the standards required for assignment to sensitive positions and access to classified information." Id. Relying on National Federation of Federal Employees, Local 1827 and Defense Mapping Agency, Aerospace Center, St. Louis Air Force Station, Missouri, 16 FLRA 791 (1984), as well as other Authority decisions, the Agency contends that the Authority has consistently held that proposals which conflict with an agency's right to establish rules and procedures to prevent unwarranted disclosure of privileged information conflict with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
The Agency claims that Proposal 3 goes to the "heart of the Agency's security program, security policy, internal security procedures, and security responsibilities." Statement at 6. The Agency contends that the proposal limits "management's ability to conduct reviews of employees' security questionnaires and obtain information relating to an employee's trustworthiness, reliability or [loyalty] that may reflect adversely on his/her ability to safeguard classified information." Id. at 8. According to the Agency, Proposal 3 would prevent it from putting into effect its internal security system of supervisory review of Personnel Security Questionnaires, and other forms associated with the periodic reinvestigation of employees, to ensure that they meet required standards for assignment to sensitive positions and access to classified information. Id. The Agency concludes, therefore, that the proposal "directly and excessively interferes" with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. Id.
Citing Kansas Army National Guard, the Agency contends that the proposal does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute. The Agency relies on Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384 (1987), aff'd mem. sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 30, 1988) (per curiam) (Proposal Section 3.K), where the Authority found that a proposal concerning management's determination of the content of performance standards did not concern an arrangement because the establishment of performance standards does not by itself adversely affect employees. The Authority noted that an adverse effect would not occur until action against an employee was taken by management based upon the application of those standards. The Agency contends that, like Patent and Trademark Office, "no adverse effect could occur as a result of a supervisory review of an employee's [DD Form 398] unless the supervisor provides significant adverse information when completing" DMA Form 5200-6. Statement at 8.
The Agency also contends that the proposal does not constitute an appropriate arrangement because it "completely abrogates management's rights." Id. The Agency argues that an essential element of its internal security procedures respecting security clearances is the conduct of background investigations and periodic reinvestigations of employees. The Agency states that, by "[p]roscribing supervisory review of employees' security forms" and by "foreclosing supervisors from providing significant adverse information of the [type contained on DMA Form 5200-6] which may reflect adversely on an employee's ability to safeguard classified information," Proposal 3 could result in management "granting security clearances and access to classified information contrary to national security interests." Id. at 8-9. The Agency contends, therefore, that as the proposal "directly and excessively interferes with the exercise of management's right to determine its internal security practices" under section 7106(a)(1) of the Statute, it is not an appropriate arrangement. Id. at 9.
The Agency also contends that Proposal 3 interferes with its right to determine the technology, methods, and means of performing work under section 7106(b)(1) of the Statute. According to the Agency, the granting or denying of security clearances is so integrally related to the accomplishment of its mission that the process employed constitutes the means of performing work. The Agency states that: (1) it produces maps and charts that are classified in the interest of national security; (2) to produce these products it relies on classified source material; and (3) it is charged under law to maintain the secrecy of the products and source material in the interest of national security. Id. at 10-11. The Agency concludes, therefore, that "it is evident" that the "review of [DD Form 398] by supervisors" for the purpose of recommending the granting or denial of security clearances constitutes "work" within the meaning of section 7106(b)(1) of the Statute. Id. at 11.
The Agency also states, for the reasons expressed in connection with Proposals 1 and 2 above, that Proposal 3 interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute.
2. Union
The Union contends that the proposal does not interfere with management's rights to determine its internal security practices or to determine the methods and means of performing work, but instead constitutes a negotiable procedure under section 7106(b)(2) of the Statute. The Union also states that even if the proposal interferes with management's rights, it constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
According to the Union, the "intent" of the proposal is to "modif[y]" the current procedure so that an "employee can omit sensitive information from the supervisory review and have the information placed on the form when the security personnel review it." Response at 5. The Union states that DD Form 398 contains some "sensitive information", for example, "counseling, arrests, convictions, drugs, etc." which "supervisors have no reason or need to know." Petition at 2. The Union asserts that employees "should not be required to divulge this information to their supervisor[s]," but "only [to] an employee in security." Id. The Union contends that its proposal would "prevent the employees['] privacy from being infringed on by the . . . supervisor . . . who is going to make numerous personnel decisions on the employee." Response at 5. In the Union's view, "the knowledge of sensitive information [by an employee's supervisor could] have nothing but a negative [e]ffect on the employee." Id.
B. Analysis and Conclusions
1. The First Paragraph of Proposal 3 Directly Interferes With Management's Right to Assign Work
The first paragraph of Proposal 3 would permit an employee to omit information from DD Form 398 when that employee objected to having his or her supervisor review such information. The proposal would permit the employee to provide this information only to security personnel. According to the Union, the intent of the first paragraph of Proposal 3 is to modify the current procedures so that an "employee can omit sensitive information from [his/her] supervisor's review and have the information placed on the form when the security personnel review it." Response at 5. The Union contends that DD Form 398 requires employees to provide information that they should not be required to divulge to supervisors but, instead, should be provided only to security personnel.
Based on the wording of the first paragraph and the Union's stated intent, we conclude that the intent of this part of the proposal is to limit supervisory review of DD Form 398 by removing from supervisors' consideration information that an employee elects to omit and assigning the review of such information--submitted later--only to security personnel. By allowing employees to decide what information out of all the information required on DD Form 398 can be reviewed by supervisors, the proposal, in effect, prevents management from assigning to supervisors the task of reviewing all the information required by this form and, instead, requires that this task be performed by security personnel.
Proposals that require management to assign particular tasks to particular personnel, or that preclude management from assigning particular functions to particular individuals, directly interfere with management's right to assign work. See Defense Mapping Agency, Louisville, Kentucky, 39 FLRA at 1179 (fourth sentence of proposal requiring supervisory personnel to evaluate map sheets, and precluding management from assigning that function to project directors, held to directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute). See also Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410, 1412-13 (1991). Because the first paragraph of Proposal 3 would limit supervisory review of the information required by DD Form 398, and would require management to assign a portion of that function to security personnel, we conclude, consistent with Defense Mapping Agency, Louisville, Kentucky, that the first paragraph of Proposal 3 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.
Moreover, because the first paragraph of Proposal 3 directly interferes with management's right to assign work, we find that it does not constitute a negotiable procedure under section 7106(b)(2) of the Statute. See Section III.B.4. of this decision.
2. The First Paragraph of Proposal 3 Does Not Constitute an Appropriate Arrangement Within the Meaning of Section 7106(b)(3) of the Statute
Having determined that the first paragraph of Proposal 3 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute, we next decide whether the first paragraph of Proposal 3 constitutes an appropriate arrangement under section 7106(b)(3). See Kansas Army National Guard, 21 FLRA 24.
The Union contends that the proposal is intended to protect employees' privacy by limiting supervisors' knowledge of sensitive personal information disclosed by employees during the review process. That is, the proposal limits the risk to employees that the information provided on DD Form 398 would affect the personnel decisions made by their supervisors. Based on the Union's statement of intent, we conclude that the proposal would address the adverse effects on employees of the Agency's assignment of security review functions to supervisors. We find, therefore, that the proposal is an arrangement for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3) of the Statute.
We next consider whether the first paragraph of Proposal 3 constitutes an appropriate arrangement or whether it excessively interferes with management's right to assign work. As we noted earlier, in order to determine whether the disputed language excessively interferes with the management right, we must determine whether the burden placed on the management right is disproportionate to the benefits to employees conferred by the proposal. See Kansas Army National Guard at 33.
We find that the burden imposed on management's ability to assign work by the first paragraph of Proposal 3 is that management would be precluded from assigning to supervisors the task of reviewing information contained on the personnel security questionnaire. Management asserts that it has assigned the review function to supervisors because supervisors, based on their familiarity with their employees, are better able to assess the accuracy of the information on the personnel security questionnaire and to provide a source of information bearing on the granting or revocation of employees' security clearances. See Statement at 8-9. By precluding supervisors from reviewing information provided by employees, the proposal would frustrate the very purpose for which the Agency assigned the supervisory review function in the first place.
In our view, such a prohibition on the assignment of work is disproportionate to the benefits that might result from the proposal for unit employees in a reduced risk that the information provided would compromise supervisory personnel decisions regarding those employees.
Consequently, we find that the restriction on work assignment in the first paragraph of Proposal 3 excessively interferes with management's right to assign work under section 7106(a)(2)(B). We find, therefore, that this part of the proposal does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. See, for example, Defense Mapping Agency, Louisville, Kentucky, 39 FLRA at 1181. Accordingly, we conclude that the first paragraph of Proposal 3 is nonnegotiable.
In view of our conclusion that the first paragraph of Proposal 3 is nonnegotiable because it excessively interferes with management's right to assign work under section 7106(a)(2)(B), we find it unnecessary to address the Agency's other contentions with respect to this part of the proposal.
3. The Second Paragraph of Proposal 3 Is Negotiable
The second paragraph of Proposal 3 requires the Agency, at an employee's request, to provide the employee with statements and attachments that accompany the supervisor's DMA Form 5200-6 pertaining to the employee. The Agency does not specifically claim that the requirement to provide the employee with those statements and attachments is nonnegotiable and, in the absence of any basis for concluding otherwise, we find that the second paragraph of Proposal 3 is negotiable. We note, moreover, that DMA Form 5200-6 itself states that "under the provisions of the Privacy Act of 1974 the [subject of the investigation] may have access to the information provided by the [supervisor] if an appropriate Privacy Act request is submitted."
VI. Order
The Agency must negotiate on request, or as otherwise agreed to by the parties, concerning Proposals 1, 2 and the second paragraph of Proposal 3.(2) We dismiss the petition for review as to the first paragraph of Proposal 3.
.
[DMA FORM 5200-6]
I have reviewed the DD Form 398, Personnel Security Questionaire, and other forms associated with the periodic reinvestigation interview which are to be submitted for initiation of a periodic reinvestigation on SSN: . I certify by my signature below that the following statement, as indicated and any additional information which I have provided is true, complete and correct to the best of my belief, based on my knowledge of the person identified above. I understand that a knowing and willful statement on this form can be punished by fine or imprisonment or both (See U.S. Code, Title 18, Section 1001.) I understand my responsibilities for ensuring that information contained on security forms is protected in accordance with the Privacy Act of 1974. I also understand that under the provisions of the privacy Act of 1974 the individual named above may have access to the information provided by me if an appropriate Privacy Act request is submitted.
Please complete one of the following statements.
| | I am aware of no information of the type contained in Appendix E,(on reverse) DoD 5200.2R, Personnel Security Program, relating to subject's trustworthiness, reliability, or loyalty that may reflect adversely on his/her ability to safeguard classified information.
Title and Signature
Component Date
| | I am aware of information of the type contained in Appendix E,(on reverse) DoD 5200.2R, Personnel Security Program, relating to subject's trustworthiness, reliability, or loyalty that may reflect adversely on his/her ability to safeguard classified information is detailed on an attached statement.
Title and Signature
Component Date
[DMA FORM 5200-6]
Background Investigation (BI) and Special Background Investigation (SBI) shall be considered as devoid of significant adverse information unless they contain information listed below:
1. Incidents, infractions, offenses, charges, citations, arrests, suspicion or allegation of illegal use or abuse of drugs or alcohol, theft or dishonesty, unreliability, irresponsibility, immaturity, instability or recklessness, the use of force, violence or weapons or actions that indicate disregard for the law due to multiplicity of minor infractions.
2. All indications of moral turpitude, heterosexual promiscuity, aberrant, deviate, or bizarre sexual conduct or behavior, transvestitism, transsexualism, indecent exposure, rape, contributing to the delinquency of a minor, child molestation, wife-swapping, window-peeping, and similar situations from whatever source. Unlisted full-time employment or education; full-time education or employment that cannot be verified by any reference or record source or that contains indications of falsified education or employment experience. Records or testimony of employment, education, or military service where the individual was involved in serious offenses or incidents that would reflect adversely on the honesty, reliability, trustworthiness, or stability of the individual.
3. Foreign travel, education, visits, correspondence, relatives, or contact with persons from or living in a designated country. (Appendix H)
4. Mental, nervous, emotional, psychological, psychiatric, or character disorders/behavior or treatment reported or alleged from any source.
5. Excessive indebtedness, bad checks, financial difficulties or irresponsibility, unexplained affluence, bankruptcy, or evidence of living beyond the individual's means.
6. Any other significant information relating to the criteria included in a. through q. of paragraph 2-200 or Appendix I of DoD 5200.2-R.
FOOTNOTES:
(If blank, the decision
does not have footnotes.)
1. DMA Form 5200-6 is set forth in the Appendix.
2. In finding that these proposals are negotiable, we make no judgment as to their merits