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46:0333(29)NG
The decision of the Authority follows:
46 FLRA No. 29
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS
(Union)
and
U.S. DEPARTMENT OF THE ARMY
WATERVLIET ARSENAL
WATERVLIET, NEW YORK
(Agency)
0-NG-2059
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
October 28, 1992
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 Agency decided to prohibit the use of a personal television at the guard desk area on the basis that it posed a risk to internal security. The Union essentially proposed that the Agency continue the practice of allowing the guard desk officer to watch television while on duty. For the reasons that follow, we conclude that the proposal is nonnegotiable because it directly interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.
II. Background and Proposal
The Agency is the only facility in the continental United States that is engaged in the development and manufacture of certain types of artillery. One of the Agency's tenants, a research and development firm, and the Agency's Directorate of Law Enforcement and Security are located in the same building. Access to this building is monitored by a guard desk officer with the aid of closed circuit surveillance cameras. There are two closed circuit screens on a console that the guard must observe. In the past, the guard desk officer had use of a personal television while on duty. On March 17, 1992, the Agency determined that the use of a personal television at the guard desk area was a threat to its internal security and prohibited its further use.(*/) On March 31, 1992, the Union requested an allegation of nonnegotiability as to why the continued use of a personal television set was nonnegotiable.
There is nothing in the record before the Authority that indicates that a specific proposal was submitted by the Union. However, in its statement of position, the Agency provided the following language of what it presumed was the Union's proposal:
The practice of allowing the guard desk officer to watch a personal television during working hours will continue.
Statement of Position at 2. The Union did not file a response to the Agency's statement of position, nor did it object to the language formulated by the Agency. In our view, the Union is seeking to retain the practice of permitting the use of a personal television at the guard desk area. Thus, for the purpose of our decision, we will accept the above formulation of the proposal. See generally, National Federation of Federal Employees, Local 738 and U.S. Department of the Army, Army Engineer Center and Fort Leonard Wood, Fort Leonard Wood, Missouri, 37 FLRA 131, 134 (1990).
III. Positions of the Parties
A. The Agency
The Agency contends that the proposal interferes with the right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency claims that the exercise of that right includes the right to determine what is necessary to safeguard its physical property against internal or external risks, to prevent improper or unauthorized disclosure of information, or to prevent the disruption of its activities or operations. The Agency explains that because it is the only installation in the continental United States engaged in the development and manufacture of certain types of artillery, among other things, the unauthorized disclosure of this type of technology and production would have serious consequences on the security of the United States. In addition, the Agency claims that since the establishment of the facility over 150 years ago, the surrounding area has changed from an agrarian community to a large metropolitan city. In recognition of these concerns, the Agency states that it has developed security measures to identify actual and potential intrusions and protect against unauthorized disclosure of sensitive information.
The Agency contends that it installed closed circuit surveillance cameras in order to prevent unauthorized access to the building. The Agency claims that the proposal would allow the guard desk officer to watch television during the time that he or she should be observing the closed circuit monitors. The Agency argues that the use of a television distracts the guard and could result in a serious breach of security. Consequently, the Agency claims that prohibiting the use of a personal television at the guard desk during working hours is integrally related to an internal security practice and that the proposal would negate the effectiveness of that practice.
The Agency further contends that the fact that it allowed the use of a television during the Persian Gulf War is irrelevant to the negotiability of the proposal. In this regard, the Agency claims that where an agency has established the requisite connection between safeguarding its personnel and property and a practice that is designed to implement that goal, "'the Authority will not review the merits of the agency's plan in the course of resolving a negotiability dispute.'" Statement of Position at 4, quoting National Federation of Federal Employees, Local 2058 and U.S. Department of the Army, Aberdeen Proving Ground Support Activity, Aberdeen Proving Ground, Maryland, 38 FLRA 1389, 1403-04 (1991) (Member Talkin concurring) (Aberdeen Proving Ground). Similarly, the Agency asserts that the existence of a past practice of allowing the use of a personal television by the guard is not sufficient to establish that the proposal is negotiable.
The Agency also contends that the proposal interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency claims that allowing the guard desk officer to watch television while on duty would prevent the guard from devoting his or her complete attention to the assigned task of observing the closed circuit surveillance monitors.
Finally, the Agency claims that the proposal interferes with its right to determine the methods and means of performing work under section 7106(b)(1) of the Statute. According to the Agency, permitting the guard desk officer to watch television while on duty directly affects his or her ability to observe the closed circuit monitors. The Agency argues that observing the monitors is an internal security practice, which is a key component in accomplishing the Agency's mission. The Agency notes that one of its major functions consists of developing and managing programs that are designed "'to protect the arsenal's production base'" and "'to ensure [that] sensitive items and/or material are safeguarded.'" Statement of Position at 7, quoting Enclosure at 2. The Agency asserts that by interfering with these security determinations, the proposal interferes with the methods and means of performing work.
B. The Union
The Union did not file a response to the Agency's statement of position. In its petition for review, the Union contends that the use of a personal television at the guard desk does not interfere with the Agency's right to determine its internal security practices. The Union claims that the television was present at the worksite for at least 15 years, without any lapse in security, prior to the Agency's decision to prohibit its use. In addition, the Union asserts that the Agency allowed the television to be used during the Desert Shield and Desert Storm operations and that there was no breach of security during that time. The Union claims that the Agency has not provided any evidence to establish that the use of the television at the guard desk area has an effect on the security of the Agency. Consequently, the Union argues that maintaining the status quo will not jeopardize security or interfere with the Agency's right to assign work.
IV. Analysis and Conclusions
We conclude that the proposal is nonnegotiable because it directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
It is well established that an agency's right to determine its internal security practices under section 7106(a)(1) includes those policies and actions that are part of the agency's plan to secure or safeguard its personnel, physical property, and operations against internal and external risks. See National Federation of Federal Employees, Local 1214 and U.S. Department of the Army, Headquarters, U.S. Army Training Center and Fort Jackson, Fort Jackson, South Carolina, 45 FLRA 1121, 1125 (1992). Where an agency demonstrates that there is a reasonable link between its goal of protecting its property and a policy designed to implement that goal, a proposal that negates the agency's policy directly interferes with the agency's right to determine its internal security practices. Id. The Authority will not inquire into the extent of the measures employed to achieve the objective as long as they reasonably relate to the purpose for which the particular plan or practice was adopted. Id.; see National Treasury Employees Union and U.S. Department of Energy, Washington, D.C., 38 FLRA 79, 84 (1990).
The Agency argues that it installed a closed circuit surveillance system in order to prevent unauthorized access to the Agency's property. According to the Agency, this type of surveillance is necessary to protect against unauthorized disclosure of the unique artillery technology developed and manufactured by the Agency and its tenants. In our view, the Agency has established that its policy of monitoring and thereby controlling access to its property through closed circuit surveillance is linked to its internal security needs.
The Agency also argues that the closed circuit surveillance system requires constant observation on the part of the guard and that any distraction could result in a serious breach of security. We find that allowing the guard desk officer to watch a personal television while on duty could divert the guard's attention from the closed circuit monitors and, as a result, cause a lapse in security.
The Union contends that security has not been jeopardized by the presence of the television and that the Agency has not offered any "documentation to prove otherwise." Petition for Review at 2. To the extent the Union argues that the Agency has not demonstrated a link between its internal security practices and the prohibition on the use of a personal television because it has not offered factual proof of a lapse in security, we reject that argument. In establishing a link, the Authority requires an agency to show a reasonable connection between its goal of safeguarding personnel or property and its practice designed to implement that goal, rather than factual proof that the danger or risk has occurred. See, for example, Aberdeen Proving Ground, 38 FLRA at 1403.
We find that the proposal is nonnegotiable because it directly interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. In reaching this conclusion, we note that the existence of a practice permitting the use of a personal television set at the guard desk area is not dispositive of the negotiability of the proposal.
In light of this conclusion, we need not address the Agency's additional contentions that the proposal interferes with its right to assign work under section 7106(a)(2)(B) and its right to determine the methods and means of performing work under section 7106(b)(1) of the Statute. We also note the absence of any Union contention that the proposal is intended as an appropriate arrangement under section 7106(b)(3) of the Statute.
V. Order
The petition for review is dismissed.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
*/ The record contains no evidence that the Union sought to challenge the Agency's action by filing an unfair labor practice charge.