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46 FLRA No. 85

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL BORDER PATROL COUNCIL

LOCAL 2544

(Union)

and

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

BORDER PATROL

TUCSON, ARIZONA

(Agency)

0-NG-2023

DECISION AND ORDER ON NEGOTIABILITY ISSUES

December 10, 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 under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of nine proposals.⁽¹⁾

Proposal 1 provides that the Agency will build an extension to existing office space occupied by the Intelligence Section to accommodate a breakroom, additional space for the Intelligence Officer's office, and space for Air Force personnel temporarily assigned to the Intelligence Section. Proposal 11 modifies Proposal 1 by providing that the Agency will build a larger extension than specified in

Proposal 1 to also include space for a Union office. We find that the first two sentences of Proposal 1 and all of Proposal 11 are consistent with applicable law, rule, and regulation and are, therefore, negotiable. We find that the last sentence of Proposal 1, concerning the location of Air Force personnel temporarily assigned to the Intelligence Section, does not concern or vitally affect bargaining unit employees' conditions of employment and is, therefore, nonnegotiable.

Proposal 2, which requires that the breakroom be equipped with certain conveniences, is negotiable. Proposal 3, which provides that the computer printer will be in a room that is not occupied by an employee, is negotiable.

The first sentence of Proposal 4 provides that each employee will have a computer terminal at his or her work station. We find that this sentence directly and excessively interferes with management's rights under section 7106(b)(1) of the Statute to determine the technology and means of performing the Agency's work and, therefore, is nonnegotiable. The second sentence of Proposal 4 states that all printing will be done at the printer located separate from employee work stations. We find that this sentence is negotiable.

Proposal 5 specifies the types of phone lines that the Intelligence Officer and the Intelligence Aide will have. Proposal 5 directly and excessively interferes with management's rights to determine the technology of performing its work under section 7106(b)(1) of the Statute and to determine its internal security practices under section 7106(a)(1) of the Statute and is, therefore, nonnegotiable.

Proposal 6 states that all walls will be paneled to match existing paneling. We find that Proposal 6 is negotiable.

Proposal 7 provides that management will provide lockable file cabinets and a safe or safe/filing cabinet combination. We find that Proposal 7 directly interferes with management's right to determine its internal security practices under section 7106(a)(1) and the record does not demonstrate 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 find, therefore, that Proposal 7 is nonnegotiable.

Proposal 10 states that Union representatives will be in an on duty status. We find that Proposal 10, as worded, is not properly before us and, therefore, the petition for review as to Proposal 10 will be dismissed.

II. Background

By letter dated October 31, 1991, the Agency informed the Union that it intended to restructure the Tucson Sector Intelligence Office to accommodate three military intelligence personnel assigned to the sector. At the time, the Intelligence Office was occupied by two employees. By letter dated November 14, 1991, the Union asserted that the Agency's plan would adversely affect not only the two employees of the Intelligence Section but also employees in another section who share the same building. In that letter, the Union presented eight proposals addressing the adverse impact of the Agency's plan on unit employees. The Union also requested that negotiations be held and presented three ground rules proposals.

By letter dated November 15, 1991, the Agency agreed to the Union's first proposal concerning the impact of the plan on unit employees but stated that the Union's other proposals were not negotiable. The Agency further stated in its letter that, in these circumstances, no negotiations were needed. Therefore, the Agency did not specifically address the Union's ground rules proposals.

By letter dated January 5, 1992, the Union again requested negotiations over the Union's proposals and requested that no changes be implemented until negotiations were completed. The Union also amended one of the proposals.

By letter dated January 14, 1992, the Agency stated that the amended proposal and the remaining proposals did not relate to the impact of the proposed change and were "non[-]negotiable matters." Petition for Review, Attachment 5.

On January 28, 1992, the Union filed the instant negotiability appeal.

III. Preliminary Matters

A. Timeliness

The Agency argues that the Union's petition for review was untimely filed. The Agency acknowledges that its allegation of nonnegotiability dated November 15, 1991, "was unsolicited." Agency's Statement of Position at 7. Nevertheless, the Agency contends that if the Union wished to "file an appeal from an unrequested allegation of nonnegotiability," it had to file such an appeal within the time limits set forth in the Statute and the Authority's Rules and Regulations. Id. (citing National Federation of Federal Employees, Local 422 and U.S. Department of the Interior, Bureau of Indian Affairs, Colorado River Agency, 34 FLRA 721, 723 (1990) (Bureau of Indian Affairs)). As the Union failed to file its petition for review within 15 days of November 15, 1991, the Agency contends that the Union's petition is untimely. The Agency argues that the timeliness of the Union's petition should be measured from November 15, 1991, rather than January 14, 1992, because, with the exception of Proposal 1, "there was clearly no change made in the proposals" which the Agency declared nonnegotiable on November 15, 1991, compared to those referenced in the Agency's letter dated January 14, 1992. Id. at 8 (citing American Federation of Government Employees, Local 491 and Veterans Administration Medical Center, Bath, New York, 28 FLRA 30, 32 (1987) (VAMC, New York)).

The Agency also argues that the petition for review should be dismissed because management's letter of January 14, 1992, "could not have provided the jurisdictional prerequisite" for the petition for review because management's objection to the proposals "was procedural in nature and did not reach the negotiability of the proposals." Id. at 9. In this regard, the Agency argues that the January 14 letter "stated that [the Agency] had no obligation to bargain regarding the remainder of the proposals because they did not . . . address" the impact and implementation of the proposed change. Id. at 10. In these circumstances, the Agency maintains that the Authority "lacks jurisdiction to rule on such questions in the context of" a negotiability appeal. Id.

The Union disputes the Agency's allegations and asserts that its petition for review was filed within 15 days of the Agency's unsolicited allegation of nonnegotiability of January 14, 1992, and, therefore, is timely under section 7117 of the Statute.

We find that the Union's petition for review is timely filed. The Agency acknowledges that its letter dated November 15, 1991, was an unsolicited allegation of nonnegotiability. The record further establishes that in its letter dated January 14, 1992, the Agency stated that the proposals "are non[-]negotiable matters." Petition for Review, Attachment 5. Based on the clear wording of the January 14 letter, we find that the January 14 letter was a second unsolicited allegation of nonnegotiability.

A union may ignore unsolicited allegations. See Bureau of Indian Affairs. However, a union may elect to file an appeal from an unsolicited allegation of nonnegotiability and, if it elects to do so, it must file its appeal within the time limit prescribed in the Statute and the Authority's Rules and Regulations. See id.

In this case, the Union had a right to, and did, ignore the Agency's unsolicited allegation of November 15, 1991.⁽²⁾ Further, with respect to the Agency's letter dated January 14, 1992, the Union could have ignored that unsolicited allegation as well but, instead, elected to file a petition for review of that allegation. Under section 7117(c)(2) of the Statute and section 2424.3 of the Authority's Rules and Regulations, the time limit for filing a petition for review of a negotiability issue is 15 days after the union has been served with the allegation. The Union's petition for review, which was filed in response to the Agency's allegation of January 14, 1992, was timely filed on January 28, 1992. See 5 C.F.R. § 2429.21(b).

B. Duty to Bargain ⁽³⁾

The Agency maintains that the Authority lacks jurisdiction to consider the petition for review because the Agency had no obligation to bargain below the level of recognition. Specifically, the Agency claims that it is "undisputed here that the Union's national office is the certified exclusive representative of all organized Border Patrol employees, including those in [this case], and that the Local which submitted the bargaining proposals is not the 'exclusive representative.'" Statement of Position at 11-12. The Agency contends that pursuant to Article 3.G. of the Master Agreement, negotiations may take place at the local level only if the local managers and union representatives have been delegated the authority to negotiate or if the negotiations concern "the 'impact and implementation' of the exercise of management rights . . . ." Id. at 13. The Agency maintains that in this case there is no "express contractual authority" for these negotiations, there has been no delegation, and the proposals do not concern the impact and implementation of the change. Id. at 14. In these circumstances, the Agency argues that the fact that "negotiations [were] demanded[] at a level below the level of recognition" means that the Authority has "no legitimate controversy" to resolve under section 7117(c) of the Statute. Id.

The Agency "recognize[s]" that the Authority may be "constrained by its own case law to reject this argument on the grounds that it represents a defense which management could assert in an unfair labor practice [ULP] proceeding[.]" Id. The Agency asserts, however, that its argument "goes to the statutory prerequisites which must be met before the Authority can claim jurisdiction under section 7117(c) [of the Statute]." Id. In the Agency's view, section 7117(c) requires a negotiability dispute "between an agency and the exclusive representative at the level of recognition unless otherwise authorized." Id. According to the Agency, where proposals at issue in a petition for review were submitted below the level of recognition, "there is clearly a threshold burden on the petitioning union to demonstrate that the Authority has jurisdiction under section 7117(c) by proving that the parties" have delegated authority to negotiate over such matters to local managers and union officials. Id. at 15. Where the petitioning union fails to demonstrate such delegated authority, the Agency maintains that the Authority lacks jurisdiction to consider the petition for review. The Agency also contends that it has no duty to bargain because there was no actual change in employees' conditions of employment regarding several of the proposals.

The Agency objects to the Authority's policy, articulated in 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 (1984) (Wurtsmith II), that questions relating to the duty to bargain must be separately resolved through unfair labor practice procedures because the Authority applies that policy "irrespective of whether or not a ULP in which such defenses will be addressed is even pending[.]" Statement of Position at 17 (emphasis omitted). The Agency contends that where, as here, there is no pending unfair labor practice case, the Agency "will never be able to obtain a favorable (or appealable) ULP ruling on these issues before it is faced with an enforceable Authority decision which may say it must, nevertheless, bargain on some or all the proposals." Id. at 17-18. The Agency asserts that Congress "could not have intended" such a result and that the Authority "should re-examine Wurtsmith II . . . ." Id.

The Union argues that the Agency's obligation to bargain extends to all matters raised by the Union and that the "authority to deal with all of the issues present in the instant case ha[s] been delegated to the local level[.]" Union's Response at 6. The Union further argues that the Agency "mistakenly assumes that all of the Union's proposals in the instant case must be limited to impact and implementation bargaining . . . ." Union's Response to Agency's Reply Brief (Union's Supplemental Response) at 5.⁽⁴⁾ The Union contends that the parties' agreement "allows both parties to address substantive bargaining issues." Id. Moreover, the Union asserts that "the [c]ourts have upheld the rights of unions to initiate mid-term bargaining at any time." Id. at 5-6 (citing National Treasury Employees Union v. FLRA, 810 F.2d 295 (D.C. Cir. 1987)).

The Agency's arguments concern the duty to bargain in the specific circumstances of this case. Under longstanding Authority precedent, as acknowledged by the Agency, where the conditions for review of negotiability issues have been met, a union is entitled to a decision by the Authority as to whether its proposals are within the duty to bargain under the Statute. To the extent that there are additional issues regarding the duty to bargain or the parties' master agreement in the specific circumstances of this case, these issues should be resolved in other appropriate proceedings. Nothing in the Agency's arguments warrants reversal of our longstanding precedent in this regard. Further, insofar as the court held to the contrary, we disagree with the decision of the United States Court of Appeals for the Ninth Circuit in U.S. Department of Justice, Immigration & Naturalization Service, U.S. Border Patrol Western Region v. FLRA, No. 91-70259 (9th Cir. Aug. 17, 1992), wherein the court declined to review an Authority negotiability decision pending resolution of duty to bargain issues in a related unfair labor practice proceeding.

IV. Proposals 1 and 11

Proposal 1

The building should be extended twenty feet to provide an additional 440 square feet. Using the additional 20 feet in length, the intelligence officer's office will be lengthened by four feet and the remaining sixteen feet on the north side of the building will be used for a breakroom. The remainder of the addition will be used to house the Air Force personnel temporarily on loan to the Border Patrol.

Proposal 11

The existing building would be extended an additional 30 feet rather than the originally proposed 20 feet. 100 square feet of the additional 220 square feet gained by this change would be used for Union office space. This space would include [access to] all telephone lines available in the building, with the exception of secure lines.

A. Positions of the Parties

1. Agency

The Agency views Proposal 11 as amending Proposal 1. The Agency argues that, unlike proposals providing incumbent unions with existing office space, a proposal requiring management "to build [the Union] a new office at a particular location" would preclude the Agency from determining the mission-related use of a particular means and "whether there will be such a 'means' created at all." Statement of Position at 22. The Agency argues that the proposals go "one critical step beyond the types of office space proposals" specifying the square footage of offices because the proposals require the Agency to "build a specific new building, or add to a specific building, at a specific location . . . ." Id. at 23.

According to the Agency, if the proposals are negotiable, then a proposal "requiring management to build or lease free standing office space" for a similar purpose would also be negotiable. Id. The Agency asserts that "where an agency wants to spend more tha[n] $1,500,000 on new construction," it must "obtain the concurrence" of the General Services Administration (GSA) and Congress. Id. (citing 40 U.S.C. §§ 601-615).

The Agency contends that the proposals also violate its right to determine the technology, methods and means of performing its work because the proposals "implicit[ly]" require the Agency to maintain the Intelligence Officer's space as a separately enclosed space, "thus precluding implementation of the open space, functional grouping, which management has planned to facilitate the training . . . ." Id. The Agency maintains that the portion of Proposal 1 creating a new breakroom "from the ground up" similarly interferes with management's rights under section 7106(b)(1). Id. at 25.

The Agency also contends that the proposals interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute because, under the proposals, the Union office would be located next to the Intelligence Section. The Agency argues that the office "location which the Union specifies here clearly increases the opportunity for . . . leaks" of "sensitive information pertaining to the modus operandi, identities, locations, routes used by, etc. of those persons who smuggle illegal drugs across our southern border." Id. at 24, 25. The Agency further argues that because "employees from other buildings in the compound and [non-employee U]nion representatives will have access to the Union office," the proposals "further increas[e] the risk of compromising the intelligence gathering operation." Id. at 25. The Agency maintains that the portion of Proposal 1 creating a new breakroom would "create employee traffic in close proximity to the Intelligence Section" and similarly interfere with management's right to determine its internal security practices. Id.

The Agency also contends that the proposals interfere with its right under section 7106(a)(2)(B) of the Statute to assign work by requiring the Intelligence Officer's space to remain separately enclosed. In this regard, the Agency argues that open space "facilitate[s] the training which will be necessary if [the Intelligence Officer is] to be able to take over operation of the new intelligence system before the Air Force personnel leave." Id. at 23-24.

Moreover, the Agency argues that the portion of Proposal 1 requiring the Air Force personnel to be "separated from the two Intelligence Section staff members with whom they must interact" is nonnegotiable because it does not concern the conditions of employment of unit employees and "would permit the Union to dictate the conditions of employment of [non-employee] military personnel." Id. at 26, 27 (citing United States Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992) (Cherry Point). Further, "even if the Air Force personnel were part of the unit," the Agency maintains that the proposal would interfere with management's ability to train employees and its rights to determine the technology, methods and means of "performing its intelligence gathering work." Id. at 28. In arguing that the proposal interferes with management's right to determine the methods and means of performing work, the Agency states that it "preserve[s its] objection to the validity of the [Authority's] two prong test . . . ." Id. at 28-29 n.2.

Further, the Agency argues that the proposals are not appropriate arrangements because they do not address or ameliorate any foreseeable adverse impact caused by the reconfiguration of the office space.⁽⁵⁾ According to the Agency, inasmuch as "there are currently no permanent [U]nion offices in any Border Patrol Sector . . the reconfiguration will not affect the unit employees' access to [U]nion representatives[.]" Id. at 39. Further, the Agency contends that the Union has not disputed that "the parties' Master Agreement does not provide for permanent Union offices, and that the Union currently has no permanent offices in the Tucson, Arizona location . . . ." Agency's Reply Brief at 3. The Agency also contends that the Union has failed to address the Agency's arguments that the proposals do not constitute arrangements. The Agency notes that even assuming that a new Union office would benefit the affected unit employees, "the fact that a proposal creates a benefit does not make it an 'arrangement' for those employees." Id. at 4 (citing U.S. Department of Treasury, Office of Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068 (D.C. Cir. 1992) (Office of Chief Counsel), decision and order on remand, 45 FLRA 1256 (1992)).

The Agency also argues that the portion of the proposals establishing a breakroom does not constitute an arrangement because the reconfiguration of office space will not change the fact that "there is an equipped break room currently available to the Intelligence Section's employees in an adjoining building within 100 feet of the Section's office[.]" Statement of Position at 39. The Agency maintains that even if the existing breakroom had not been available to unit employees, "such a fact would still not serve to demonstrate that the employees would be adversely affected by the renovation because their access to breakroom facilities would still not have been changed in any way by the exercise of the management rights involved." Agency's Reply Brief at 4 (emphasis omitted). According to the Agency, "the fact that a new 'breakroom' might benefit the employees does not convert the Union's proposal to build another breakroom into an 'appropriate arrangement.'" Id. at 4-5.

2. Union

The Union states that Proposal 11 "amends" Proposal 1. Petition for Review, Attachment 5. The Union contends that "the small addition proposed by the Union would not even remotely approach" the costs noted by the Agency in connection with 40 U.S.C. §§ 601-605. Union's Response at 6. The Union also contends that there is "no precedent that holds" nonnegotiable a proposal requiring an agency to build an addition to an existing building. Id. at 13. Further, the Union disputes the Agency's assertion that the proposals interfere with management's right to determine its internal security practices. In this regard, the Union argues that nothing in the proposals "precludes the Agency from securing the doors to the [I]ntelligence [S]ection" and that "the Union would have no greater access to the [I]ntelligence [S]ection than any other employee" in the complex. Id. at 6, 13.

The Union argues that "[i]t is not clear" that the existing breakroom referred to by the Agency is "for the use of unit employees" because the breakroom is located in a building "staffed almost entirely by management personnel." Id. at 7. The Union also argues that the Agency has not cited any regulation "restricting the number of break rooms . . . ." Id. The Union disputes the Agency's claim that "access to breakrooms will not change in any way as a result of the proposed modification" and argues that the Agency's attempt to reallocate the existing work space "restricts access to certain areas in the process." Union's Supplemental Response at 2.

With respect to maintaining a separate office for the Intelligence Officer, the Union disputes the Agency's allegation that the proposals interfere with management's right to assign work or determine the technology, methods, and means of performing work. The Union notes that the Authority has previously held that "proposals granting private offices are negotiable." Union's Response at 7. Further, the Union contends that the Agency "has failed to demonstrate how the Union's proposal[s] would defeat the purpose for which the functional grouping is proposed." Id. According to the Union, its proposed grouping "would be even more efficient for the [Agency's] stated purpose of cross-training bargaining unit employees . . . ." Id.

Additionally, the Union argues that the Authority has held that "union office space is a substantively negotiable condition of employment." Union's Supplemental Response at 5. The Union further argues that "the absence of language [from the parties' agreement] concerning permanent [U]nion office space is irrelevant" to the instant petition for review. Id. at 6.

The Union asserts that the Agency's arguments relating to the conditions of employment of nonunit employees "need not be addressed, as nothing in the Union's proposals dictates how the remaining office space will be divided during the temporary period that it will be occupied by [nonunit] personnel." Union's Response at 7.

The Union argues that the Authority should reject the Agency's attempt "to confine bargaining to [the Agency's] narrow view of changed conditions of employment" because, in the Union's view, appropriate arrangements are not limited to past practices. Id. at 14. Further, the Union disputes the Agency's claim that the right to bargain over procedures and appropriate arrangements does not apply to permissive bargaining in section 7106(b)(1) of the Statute.

B. Analysis and Conclusions

For the following reasons, we find that the first two sentences of Proposal 1 and all of Proposal 11 are negotiable. The last sentence of Proposal 1 is nonnegotiable because it seeks to regulate non-employees' conditions of employment and does not concern or vitally affect bargaining unit employees' conditions of employment.

1. Meaning of the Proposals

The first two sentences of Proposal 1 require the Agency to extend the building housing the Intelligence Section an additional 20 feet and specify that the additional space is to be used for a breakroom and an expansion to the Intelligence Officer's office. The last sentence of the proposal specifies that the remainder of the new space not used for the breakroom and the Intelligence Officer's office is to be used for the Air Force personnel temporarily assigned to the Intelligence Section.

Proposal 11 modifies Proposal 1 by requiring the Agency to extend the building housing the Intelligence Section 30 feet, rather than the 20 feet required in Proposal 1. Under Proposal 11, 100 square feet of the 220 square feet gained by this change would be used for a Union office.

2. The Technology of Performing Work

We reject the Agency's claim that the proposals directly interfere with its right to determine the technology of performing its work because the proposals would require it to construct an addition to the building to accommodate a Union office and a breakroom, a specific private office for the Intelligence Officer, and a separate office for Air Force personnel working on the intelligence system. We find the Agency's suggested distinction between proposals regarding the construction of new space and proposals regarding the rearrangement of existing space does not affect the analysis in determining whether the proposals in this case directly interfere with management's right to determine its technology.

The Authority employs a two-part test to determine whether a proposal directly interferes with management's right to determine the technology used in performing work. In order to sustain such a claim, an agency must show: first, the technological relationship of the matter addressed by the proposal to accomplishing or furthering the performance of the agency's work; and second, how the proposal would interfere with the purpose for which the technology was adopted. For example, American Federation of Government Employees, Local 3601 and U.S. Department of Health and Human Services, Public Health Service, Indian Hospital, Claremore, Oklahoma, 39 FLRA 504, 511-12 (1991) (PHS Indian Hospital, Claremore); Department of Health and Human Services, Public Health Service, Health Resources and Services Administration, Oklahoma City Area, Indian Health Service, Oklahoma City, Oklahoma, 31 FLRA 498, 506 (1988), petition for review denied, 885 F.2d 911 (D.C. Cir. 1989).

Based on the record before us, we find that the Agency has not demonstrated that there is a technological relationship between the proposed building expansion and its configuration and the performance of the Agency's work within the meaning of section 7106(b)(1) of the Statute. See PHS Indian Hospital, Claremore; National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 404-06 (1990) (Department of the Treasury). Where an agency does not establish a technological relationship between the matter addressed by the proposal and the performance of the agency's work, the proposal will be found negotiable.

3. The Methods and Means of Performing Work

The Authority employs a two-part test to determine whether a proposal violates management's right to determine the methods and means of performing work. First, an agency must show a direct relationship between the particular method or means the agency has chosen and the accomplishment of the agency's mission. Second, the agency must show that the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. Department of the Treasury, 35 FLRA at 406-09. See also National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, Ft. Lauderdale, Florida, 41 FLRA 1283, 1288-91 (1991).

The Authority has construed method as referring to the way in which an agency performs its work. Department of the Treasury, 35 FLRA at 406. Means refers to any instrumentality, including an agent, tool, device, measure, plan or policy used by an agency for the accomplishment or furtherance of the performance of its work. Id. at 407. The means need not be indispensable to the accomplishment of an agency's mission. The term "performing work" is intended to include those matters that directly and integrally relate to the agency's operations as a whole. Id.

The Agency argues that requiring management to retain the Intelligence Officer's office as a separately enclosed space precludes implementation of the open space, functional grouping plan which management intends to use. According to the Agency, the open space plan will enable management to group the Intelligence Section staff closely together so as to facilitate the training of the staff by Air Force personnel in how to maintain and operate the intelligence system. The Union contends that its proposal would be more efficient for the stated purpose of cross-training bargaining unit employees, and asserts that the Agency has failed to demonstrate how the Union's proposal would defeat the purpose for which the functional grouping is proposed.

Establishing a "functional grouping" of employees constitutes the methods and means of performing work under section 7106(b)(1) where it is shown that the performance of an agency's work is facilitated by the ability to group employees based on the functions which they perform. Department of the Treasury, 35 FLRA at 408-09. We conclude that the establishment of a functional grouping of the Intelligence Section staff constitutes a methods and means of performing work within the meaning of section 7106(b)(1) of the Statute. The stated purpose of establishing a functional grouping of the Intelligence Section staff is to facilitate cross-training of Agency employees prior to the departure of Air Force personnel. Given this purpose, the functional grouping is designed to enhance the ability of the Intelligence Section to accomplish its work in a more efficient and effective manner. Consequently, the functional grouping constitutes a method or means of performing work under section 7106(b)(1) of the Statute.

As we have determined that the Agency's plan to establish a functional grouping of Intelligence Section staff constitutes a method or means of performing work, we turn to the Agency's contention that Proposal 1 would prevent the establishment of such a functional grouping. The Agency argues that requiring management to maintain a private office for the Intelligence Officer would require it to abandon its plan for the functional grouping. Specifically, the Agency argues that without an open space office arrangement which includes space for the Intelligence Officer, it will not be able to accomplish the training for which it adopted a functional grouping in the Intelligence Section.

We find that the Agency has not demonstrated that Proposal 1 would interfere with the Agency's ability to accomplish the training for which it adopted a functional grouping in the Intelligence Section. We note, first of all, that Proposal 1 would not affect the Agency's ability to use an open space arrangement for Intelligence Office staff other than the Intelligence Officer. Thus, Proposal 1 would not affect the Agency's plan to use the open space arrangement to facilitate the training of the Intelligence Office staff in how to maintain and operate the intelligence system. Moreover, the Agency has not demonstrated that an open space arrangement for the Intelligence Officer is needed for training purposes. In particular, the Agency has not described the proposed intelligence system, how it will be implemented in the Intelligence Section, the relationship of the Intelligence Officer to the operation of that system, or how a separate office for the Intelligence Officer would impede the training of the Intelligence Officer in the operation of the system or in his or her relationship to the Intelligence Section staff in the operation of that system.

Accordingly, we find that Proposal 1 would not directly interfere with the purpose for which the Agency decided to use a functional grouping and conclude that Proposal 1, to the extent that it requires a private office for the Intelligence Officer, would not directly interfere with management's rights to determine the methods and means of performing work under section 7106(b)(1) of the Statute.

4. The Right to Assign Work

Management's right to assign work under section 7106(a)(2)(B) of the Statute encompasses the right to assign training that is intended to increase the knowledge, proficiency, skill and qualifications of employees in the performance of their official duties. See National Association of Government Employees, Federal Union of Scientists and Engineers, Local R1-144 and U.S. Department of the Navy, Naval Underwater System Center, Newport, Rhode Island, 42 FLRA 730, 773 (1991). The location at which employees perform the normal duties of their jobs is negotiable unless a relationship exists between the job location and the job duties. American Federation of Government Employees, Local 898 and U.S. Department of Labor, Occupational Safety and Health Administration, Denver, Colorado, 39 FLRA 1441, 1443 (1991).

Proposals 1 and 11 in this case neither require that management train employees nor pertain to what training it must provide. Rather, the proposals only relate to the configuration of the office space in which cross-training of Intelligence Office staff by military personnel is accomplished. There is nothing in the record which indicates that the Agency could not accomplish the training in the space configuration included in the proposals. Accordingly, the proposals do not directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute.

5. Internal Security

The Agency contends that Proposals 1 and 11 present an unacceptable security risk and adversely affect the Agency's internal security. The Agency states that the intelligence which this unit gathers pertains to the "modus operandi, identities, locations, routes used by, etc. of those persons who smuggle illegal drugs across our southern border." Statement of Position at 24. According to the Agency, if drug traffickers were to obtain knowledge of some of the technology by which part of this intelligence is being gathered, they would be in a better position to evade such measures. Under Proposal 1, a breakroom would be created in close proximity to the space occupied by the Intelligence Section, and under Proposal 11, a Union office would be located in the same expanded building. The Agency contends that both the breakroom and the Union office would create employee traffic close to the Intelligence Section and their close proximity to the Intelligence Section office would increase the opportunity for leaks, thus increasing the risk of compromising the intelligence gathering operation.

The Union states that nothing in the proposals precludes the Agency from securing the doors to the Intelligence Section, which would limit access to the information contained therein.

Under section 7106(a)(1) of the Statute, the right to determine internal security practices includes an agency's right to determine the policies and practices that are necessary to safeguard its operations, personnel and physical property against internal or external risks. Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 836 (1991).

The determination of when and how employees gain access to agency facilities is within an agency's authority to determine its internal security practices under section 7106(a)(1) of the Statute where it is demonstrated that a reasonable connection exists between access to facilities in question and internal security considerations. We find, in the circumstances of this case, that the Agency has established a need to control access to the Intelligence Section based, for example, on the presence in that section of confidential and classified documents. Consequently, we find that the Agency has established a reasonable connection between control of access to the Intelligence Section and its internal security concerns and conclude that such control is a matter that comes within management's right to determine its internal security practices. See id. at 837. The issue, therefore, is whether Proposals 1 and 11, by requiring the Agency to create additional space for a breakroom and a Union office, directly interfere with management's right to determine its internal security practices by controlling access to the Intelligence Section.

We find that the Agency has failed to demonstrate that Proposals 1 and 11 directly interfere with its right to determine its internal security practices. Nothing in the record establishes that by allowing employees to have access to the proposed breakroom and Union office which would be created, Proposals 1 and 11 would require the Agency to give employees access to the Intelligence Section. Further, nothing in the proposals would preclude the Agency from adopting security measures to prevent unauthorized personnel from gaining access to the Intelligence Section. We find, therefore, that Proposals 1 and 11 would not prevent management from controlling access to the Intelligence Section. Consequently, we conclude that Proposals 1 and 11 do not directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.

We find that this case is distinguishable from the proposal on access to a library/conference room in American Federation of Government Employees, Local 644, AFL-CIO and U.S. Department of Labor, Occupational Safety and Health Administration, 21 FLRA 658, 661-62 (1986). In that proposal, employee admittance and access to library materials in the room was at issue. In this case, employees would not have ready access to the Intelligence Section, the area which management seeks to secure, but rather the employees would be seeking access to a breakroom and a Union office. Moreover, because Proposals 1 and 11 would not require that employees have access to the area management seeks to secure, it is distinguishable from the proposal at issue in American Federation of Government Employees, Local 2452 and U.S. Department of Health and Human Services, Social Security Administration, District Office, Huntington Park, California, 45 FLRA 1213 (1992) (Member Armendariz dissenting in part), petition for review filed No. 92-1584 (D.C. Cir. Nov. 12, 1992). The disputed proposal in that case would have established an exception to the measures management had adopted to secure the building, which exception would have allowed Union officials who did not work in the building to have unrestricted access to that building.

6. Appropriation Limits

The Agency contends that, under 40 U.S.C. §§ 601-615, any expenditure on new construction in excess of $1,500,000 must be authorized by Congress and approved by GSA. The Union maintains that the expansions to the building contained in the proposals would not exceed the statutory dollar limit. There is nothing in the record which demonstrates that construction expenses that would result from implementation of the proposals would exceed the statutory dollar limit. Accordingly, the proposals are not inconsistent with 40 U.S.C. §§ 601-615.

We note that if the proposed expansions to the building were to cost in excess of the statutory limit, the Agency would be obligated to bargain over Proposals 1 and 11 to the extent that it had discretion even if such discretion were limited to recommending the proposed building expansions to GSA and to Congress. American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477 and Library of Congress, Washington, D.C., 7 FLRA 578, 585-86 (1982), enf'd, 699 F.2d 1280 (D.C. Cir. 1983).

7. Conditions of Employment

The Agency contends that the last sentence of Proposal 1, which pertains to the space for the Air Force personnel temporarily assigned to the Intelligence Section, is nonnegotiable because it pertains to conditions of employment for staff--that is, Air Force personnel--who are not employees in the bargaining unit. The Union asserts that nothing in its proposals dictates how the remaining office space will be divided during the temporary period that it will be occupied by nonunit personnel.

Under the last sentence of Proposal 1, the remainder of the additional space created by the building expansion would be used for the Air Force personnel temporarily assigned to the Intelligence Section. Air Force personnel are military personnel and, therefore, are not employees within the meaning of section 7103(a)(2) of the Statute. See, for example, Association of Civilian Technicians, Montana Air Chapter and Department of the Air Force, Montana Air National Guard, Headquarters 120th Fighter Interceptor Group (ADTAC), 20 FLRA 717, 734 (1985), petition for review as to other matters denied mem., 809 F.2d 930 (D.C. Cir. 1987). Generally, the conditions of employment of persons not included in a bargaining unit, such as the military personnel involved here, are not negotiable. In Cherry Point, however, the court approved the Authority's adoption of the vitally affects test used in the private sector to determine whether proposals directly relating to the conditions of employment of persons outside the unit might nevertheless fall within the scope of the duty to bargain. According to the court, the vitally affects test is appropriately used "to define the limited circumstances in which subjects not normally seen to be within the compass of mandatory bargaining--e.g., the terms of a relationship between the employer and a third party--may become mandatory subjects due to their effect on bargaining unit employees." Cherry Point, 952 F.2d at 1440.

With respect to non-employees, the court stated that "a union may bargain with respect to [non-employees] if a [non-employee] matter vitally affects bargaining unit interests[.]" Id. at 1442. Stated in terms of the principles set forth by the court in Cherry Point, the issue in this case is whether the last sentence of Proposal 1 purports to regulate the working conditions of non-employees and, if so, whether that aspect of the proposal vitally affects the conditions of employment of unit employees. Id. at 1441-42. See American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1417 (1992).

The last sentence of Proposal 1 concerns the location of the work space for the Air Force personnel temporarily assigned to the Intelligence Section, a matter pertaining to the working conditions of those personnel. The record provides no basis on which to determine that the location of the work space for the Air Force personnel would have any effect at all upon the conditions of employment of unit employees, let alone whether it is a matter that vitally affects the conditions of employment of unit employees. Consequently, we find that the last sentence of Proposal 1 seeks to regulate the conditions of employment of the non-employee Air Force personnel and does not vitally affect the conditions of employment of unit employees. We find, therefore, that the last sentence of Proposal 1 is nonnegotiable. See National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Louisville, Kentucky, 45 FLRA 640 (1992).

8. Summary

For the above stated reasons, we find that the first two sentences of Proposal 1 and all of Proposal 11 are negotiable and that the last sentence of Proposal 1 is nonnegotiable.

V. Proposal 2

The breakroom will be equipped with a refrigerator, a microwave oven, a toaster oven, an electric drip coffee maker and a table and chairs, with seating for a minimum of four employees.

A. Positions of the Parties

1. Agency

The Agency argues that, "insofar as [Proposal 2] requires management to build a break room next to the Intelligence Section space[,]" it is nonnegotiable for the same reasons that the Agency asserts that Proposal 1 is nonnegotiable. Statement of Position at 29. The Agency also contends that for this reason the portion of Proposal 2 pertaining to "the equipment to be installed in the new break room" is moot. Id.

2. Union

The Union contends that the Authority has consistently held that proposals concerning office design and furnishings are negotiable unless the Agency shows that the proposals are inconsistent with applicable law or regulation. As the Agency has failed to make such a showing, the Union argues that Proposal 2 is negotiable.

B. Analysis and Conclusions

We find that Proposal 2 is negotiable. The Agency claims that Proposal 2 is nonnegotiable because Proposal 1 is nonnegotiable. We have found that the pertinent part of Proposal 1 is negotiable. Consequently, because the Agency does not allege any other grounds for the nonnegotiability of Proposal 2, we find that Proposal 2 is also negotiable. See, for example, National Association of Government Employees, Local R1-144 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 43 FLRA 1331, 1345-46 (1992); Department of the Treasury, Internal Revenue Service (Washington, D.C.), 27 FLRA 322, 325 (1987); American Federation of Government Employees, Social Security Local 3231, AFL-CIO and Department of Health and Human Services, Social Security Administration, 16 FLRA 47, 48-49 (1984) (Proposal 2, requiring the employer to provide a refrigerator, stove and/or microwave oven, utensils, phone, coffeemaker or dispensing machine, sink and/or dishwasher, found negotiable).

VI. Proposal 3

The computer printer will be in a room not occupied by an employee. This will make a quieter work environment, which should be a healthier work place.

A. Positions of the Parties

1. Agency

The Agency argues that the noise level of the printers mentioned in Proposal 3 "is just sufficient to put an employee on notice that the printer is operating" and "is very far from posing any danger to [employee's] health[.]" Statement of Position at 30 (emphasis in original). Therefore, the Agency maintains that the noise does not adversely affect unit employees and that the "Union's assertion to the contrary appears to pose a contested question of fact" which must be resolved in a hearing. Agency's Reply Brief at 5.

The Agency further contends that the proposal "implicitly precludes use of the functional grouping planned" and "would degrade [the] operational relationship" between the functional grouping of work stations and the location of the printers servicing them. Id. at 30, 31. Therefore, citing Department of the Treasury, the Agency maintains that the proposal interferes with management's right to determine the technology, methods and means of using these tools under section 7106(b)(1) of the Statute and its right to direct employees on how and where these tools will be used under section 7106(a)(2)(A) of the Statute.

2. Union

The Union disputes the Agency's claim that a hearing is necessary to "establish the noise level of the printers in the Agency's facility . . . ." Id. The Union argues that the "noise level of the unenclosed dot-matrix printers is common knowledge to anyone familiar with the standard equipment of five or ten years ago" and, therefore, that a hearing is "unnecessary." Id.

With respect to the Agency's claim that the proposal interferes with management's rights, the Union argues that Department of the Treasury is distinguishable because "the Agency has made no claim herein that the proposed change was designed to place such equipment within reach of the employees." Union's Response at 9.

The Union further argues that the proposal "at the very least" constitutes an appropriate arrangement for employees adversely affected by the exercise of a management right. Id. According to the Union, "[t]he adverse impact . . . would be exposure to the intolerable noise and whine of the Agency's dot-matrix printer." Id. The Union contends that "by sequestering the printer[,]" employees would conduct business more efficiently and "would be spared from the deleterious effects of noise pollution." Id.

B. Analysis and Conclusions

Proposal 3 requires that the Agency locate the computer printer in a room not occupied by an employee. For the following reasons, we find that Proposal 3 is negotiable.

As noted above, the Authority employs two-part tests to resolve whether a proposal directly interferes with management's right to determine the technology or the methods and means of performing work under section 7106(b)(1) of the Statute. See Department of the Treasury, 35 FLRA at 403-04, 406. As to the first part of those tests, we find that the Agency has not demonstrated that the location of the computer printer has a technological or a direct and integral relationship to the performance of the Agency's work so as to constitute a matter pertaining to the technology or the means of performing work within the meaning of section 7106(b)(1). In particular, there is no evidence in the record that the computer printer must be in a particular location in relation to the rest of the computer system in order for the computer system to perform the work for which it is used by the Agency. See, for example, PHS, Indian Hospital, Claremore, Oklahoma, 39 FLRA at 511-16. Compare Department of the Treasury, 35 FLRA at 406 (Authority found that a technological relationship existed between an AES compatible workstation and the performance of the agency's work only insofar as the workstation possesses AES compatible features). We find, therefore, that the decision as to the location of the computer printer does not constitute a determination as to the technology, methods, and means of performing the Agency's work within the meaning of section 7106(b)(1) of the Statute.

We note that the Agency's argument that Proposal 3 would result in an inefficient location of the computer printer concerns the merits of the proposal and does not affect the purposes for which management decided to use computer equipment to accomplish its mission. See U.S. Environmental Protection Agency, Washington, D.C., 38 FLRA 1328, 1332 (1991) ("Mere convenience, without more, does not qualify a practice as a method or means of performing work that directly or integrally relates to an agency's operations."). We also note that Proposal 3 would not preclude management from establishing a functional grouping of its personnel. The proposal would only require management, once that grouping has been established, to locate the computer printer in a room not occupied by an employee within the work space occupied by that functional grouping of employees.

We conclude, therefore, that Proposal 3 does not directly interfere with management's right to determine the technology, methods, and means of performing the Agency's work under section 7106(b)(1) of the Statute.

We next address the Agency's claim that Proposal 3 directly interferes with management's right to direct employees under section 7106(a)(2)(A) of the Statute. The right to direct employees encompasses the right to "supervise and guide them in the performance of their duties on the job." National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), aff'd, 691 F.2d 553 (D.C. Cir. 1982). Proposal 3 concerns the location of computer printers within the Agency's work space. The proposal has no direct relationship to, and does not concern in any manner, management's supervision or guidance of employees. We find, therefore, that Proposal 3 does not directly interfere with management's right to direct employees under section 7106(a)(2)(A) of the Statute. See, for example, American Federation of State, County and Municipal Employees, Local 3097 and U.S. Department of Justice, Justice Management Division, 42 FLRA 412, 468 (1991), petition for review filed, No. 91-1582 (D.C. Cir. Nov. 26, 1991).

Finally, because we find that Proposal 3 does not directly interfere with management's rights under section 7106 of the Statute, we do not need to consider whether the proposal constitutes an appropriate arrangement under section 7106(b)(3) or to hold a hearing to assess whether the noise made by computer printers is sufficient to adversely affect employees.

VII. Proposal 4

Each employee will have a computer terminal at his or her work station. All printing will be done at the printer located separate from employee work stations.

A. Positions of the Parties

1. Agency

The Agency argues that the first sentence of Proposal 4 interferes with management's right to determine the technology, methods and means of performing work. The Agency asserts that this sentence, which provides that each employee will have a computer terminal, is no different from "proposals which would require management to supply each unit employee with a phone, a calculator or an automobile for work use." Statement of Position at 32-33.

The Agency further argues that:

inasmuch as the plan submitted to the Union reveals that each of the two unit employees is, in fact, to have a terminal when the office is reconfigured, the Union simply ha[s] no basis to anticipate any adverse affect [sic] that could have emanated from the reconfiguration if they were not to be provided with such terminals.

Agency's Reply Brief at 7 (emphasis in original; citation omitted).

The Agency contends that the second sentence of Proposal 4 is nonnegotiable for the reasons asserted with respect to Proposal 3.

2. Union

The Union contends that the proposal does not interfere with management's right to determine the technology, methods and means of performing work because "the Agency has already decided to utilize computers in its intelligence operations." Union's Response at 9. According to the Union, Proposal 4 would "merely facilitate that decision by providing such equipment to all employees assigned to that unit." Id. The Union contends that if the Authority finds that Proposal 4 interferes with management's right to determine the technology, methods and means of performing work, "such interference is not excessive" and employees benefit by having access to the proper equipment to perform their assigned tasks. Id. at 10. Moreover, the Union claims that "[i]f indeed the Agency intends to supply employees with a computer terminal at each work station, it should have no problem in committing to that in the form of a written agreement with the Union." Union's Supplemental Response at 3.

B. Analysis and Conclusions

The first sentence of Proposal 4 requires that employees be provided computer terminals at their workstations. The second sentence of the proposal requires that all computer printing be done at printers located separately from employee workstations. For the following reasons, we find that the first sentence of Proposal 4 is nonnegotiable. We also find that the second sentence of Proposal 4 is negotiable.

1. The First Sentence

Applying the Authority's tests for determining whether proposals directly interfere with management's rights to determine the technology and the means of performing the Agency's work, we have found that proposals that require management to provide employees with specific equipment to perform their jobs directly interfere with management's right to determine the technology of performing the agency's work under section 7106(b)(1) of the Statute when the equipment concerns the technology of performing the agency's work. See, for example, Fraternal Order of Police, Lodge 1F (R.I.) Federal and Veterans Administration, Veterans Administration Medical Center, Providence, Rhode Island, 32 FLRA 944, 958 (1988) (VAMC Providence); National Treasury Employees Union, Chapter 229 and Department of Health and Human Services, Headquarters, 22 FLRA 698 (1986) (DHHS, Headquarters) The first sentence of Proposal 4 requires management to provide employees computer terminals--a particular type of technology--to perform their work. Consequently, consistent with VAMC Providence, we find that the first sentence of Proposal 4 directly interferes with management's right to determine the technology of performing work under section 7106(b)(1) of the Statute.

Moreover, insofar as computer terminals constitute a tool or device which the Agency uses to perform its work, we find that by requiring management to provide employees with computer terminals, the first sentence of Proposal 4 directly interferes with management's right to determine the means of performing work under section 7106(b)(1) of the Statute. See American Federation of Government Employees, Local 644 and U.S. Department of Labor, Occupational Safety and Health Administration, Norfolk, Virginia, 40 FLRA 831, 834-36 (1991). Because the first sentence of Proposal 4 directly interferes with management's right to determine the technology and the means of performing the Agency's work, therefore, it is nonnegotiable unless it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 29-33 (1986) (Kansas Army National Guard), the Authority developed a framework to determine whether a proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Under that framework, we determine whether the proposal is intended as an arrangement for employees who may be adversely affected by the exercise of management's rights. If we find that the proposal is intended as an arrangement, we determine whether that arrangement is appropriate or whether it excessively interferes with the exercise of management's rights. Contrary to the Agency's argument, we will continue to adhere to the excessive interference test set forth in Kansas Army National Guard.

Applying the framework established in Kansas Army National Guard, we find that the first sentence of Proposal 4 does not constitute an arrangement within the meaning of section 7106(b)(3) of the Statute. In order for us to conclude that a proposal is intended as an arrangement under section 7106(b)(3), the record must demonstrate that the proposal seeks to mitigate the adverse effects on employees of the exercise of a management right. Kansas Army National Guard, 21 FLRA at 31. It is not sufficient that the proposal would provide benefits to employees. See National Treasury Employees Union and U.S. Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service, 45 FLRA 1256, 1258-59 (1992) (Office of the Chief Counsel). Rather, the record must demonstrate that the proposal seeks to ameliorate the adverse effects that flow from the exercise of a management right. Id.

The Union contends that the proposal would benefit employees by providing them with "the proper equipment to perform their assigned tasks . . . ." Union's Response at 10. However, there is no evidence in the record of this case to support the conclusion that the first sentence of Proposal 4 would have the effect of ameliorating, or is intended to ameliorate, the adverse effects on employees of the exercise of a management right. It is well established that the parties bear the burden of creating a record on which the Authority can make a negotiability determination. A party failing to meet this burden acts at its peril. 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, 1130 (1992) (Fort Jackson). Because the record is insufficient, we cannot conclude that the first sentence of Proposal 4 constitutes an arrangement for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3) of the Statute. See Office of the Chief Counsel, 45 FLRA at 1258-59.

Accordingly, we find that the first sentence of the proposal is nonnegotiable.

2. The Second Sentence

The Agency alleges that the second sentence of Proposal 4 is nonnegotiable for the same reasons that Proposal 3 is nonnegotiable. For the reasons stated in our discussion of Proposal 3, we find that the second sentence of Proposal 4 is negotiable.

VIII. Proposal 5

The Intelligence officer will have a secure [phone line] and FTS phone line in his office. The Intelligence aide will have an FTS phone line at her work station.

A. Positions of the Parties

1. Agency

The Agency argues that the proposal interferes with management's right to determine the technology, methods and means of performing work because it requires management to "provide specific numbers of certain types of equipment with specific capabilities to each of the unit employees concerned for use in performing their work." Statement of Position at 33. Further, the Agency contends that to the extent that the proposal requires the Intelligence Officer's phone to be a secure line, "it would dictate a particular 'internal security practice'" in violation of management's right to determine its internal security practices. Id.

The Agency further argues that in explaining the purpose of its proposal, the Union assumes that "after the reconfiguration the unit employees will have less telephone equipment, or less ready access to telephone equipment[,] when that is not the case." Agency's Reply Brief at 7. In these circumstances, the Agency maintains that the proposal is not an arrangement because "the 'adverse effects' it purports to address are only hypothetical, and not reasonably anticipated." Id. at 8.

2. Union

The Union argues that Proposal 5 is an appropriate arrangement for employees adversely affected by the exercise of a management right because it would give employees "continued access to the telephonic equipment currently available for their use." Union's Response at 10. According to the Union, removing employees' ready access to such equipment "would severely hamper their ability to perform their assigned tasks, and could easily result in the degradation of their performance and consequently lower their performance evaluations." Id. Although the Agency states that it intends to provide such equipment, the Union claims that the Agency's "refusal to agree to such terms with the Union makes it clear that the equipment might or might not be installed." Union's Supplemental Response at 4. Moreover, the Union argues that in the absence of an agreement between the parties, such equipment could be removed "at the whim of the Agency . . . ." Id.

B. Analysis and Conclusions

We find that Proposal 5 directly interferes with management's rights to determine the technology and means of performing its work under section 7106(b)(1) of the Statute and to determine its internal security practices under section 7106(a)(1) of the Statute. We also find that the proposal does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Consequently, we find that Proposal 5 is nonnegotiable.

1. Technology and Means of Performing Work

Proposal 5 provides for the specific types of telephone service which the Intelligence Officer and aide are to have in their offices. Applying the Authority's tests for determining whether a proposal directly interferes with management's right to determine the technology and the means of performing an agency's work, the Authority has found that proposals requiring management to provide employees with sufficient telephones for the conduct of Government business directly interfere with management's right to determine the technology of performing work under section 7106(b)(1) of the Statute. See DHHS, Headquarters, 22 FLRA at 699-700 (1986); American Federation of Government Employees, Local 644 and U.S. Department of Labor, Mine Safety and Health Administration, 21 FLRA 1046, 1047-48 (1986). Because Proposal 5 requires the Agency to provide specific types of telephone lines--a particular form of communications technology--to perform its intelligence work, we find, consistent with DHHS, Headquarters, that Proposal 5 directly interferes with management's right to determine the technology of performing work under section 7106(b)(1) of the Statute.

Moreover, because specific types of telephone lines also constitute the tools or devices that the Agency uses to perform its work, we find that Proposal 5, by requiring management to provide the Intelligence Officer and aide with FTS and secure phone lines, directly interferes with management's right to determine the means of performing work under section 7106(b)(1). See, for example, American Federation of Government Employees, Local 644 and U.S. Department of Labor, Occupational Safety and Health Administration, Norfolk, Virginia, 40 FLRA 831, 834-35 (1991). Consequently, because Proposal 5 requires management to provide specific types of telephone lines to employees for use in performing the work of their positions, we find that Proposal 5 directly interferes with management's rights to determine the technology and the means of performing work under section 7106(b)(1) of the Statute.

2. Internal Security

The first sentence of Proposal 5 specifies that the Intelligence Officer will have a secure telephone line. Proposals that prescribe the actions that management will take to ensure the security of its physical property and its operations directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. See National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Washington, D.C., 44 FLRA 637, 643-44 (1992) (Hydrographic/Topographic Center) (proposal prescribing actions management will take to ensure the security of its computer system directly interferes with management's right to determine its internal security practices). Because the first sentence of Proposal 5 requires management to provide the Intelligence Officer with a secure phone line to ensure the security of the Agency's communications, we find, consistent with Hydrographic/Topographic Center, that the first sentence of Proposal 5 directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.

Consequently, because Proposal 5 as a whole directly interferes with management's right under section 7106(b)(1) and because the first sentence of the proposal also directly interferes management's right under section 7106(a)(1), Proposal 5 is nonnegotiable unless it is an appropriate arrangement under section 7106(b)(3).

3. Appropriate Arrangement

Applying the framework established in Kansas Army National Guard, we find that Proposal 5 does not constitute an arrangement for employees adversely affected by the exercise of a management right. The Union contends that the requirement of the proposal that management provide the specified phone service is designed to mitigate the adverse effect on employees that would result from the failure of management to provide that service. However, as noted earlier, a proposal is not an arrangement merely because employees would be adversely affected if they were denied the benefit provided by the proposal. See Office of the Chief Counsel, 45 FLRA at 1258-59. Moreover, it is not apparent from the record that the proposal otherwise seeks to ameliorate an adverse effect that flows from the exercise of a management right. Consequently, we conclude that Proposal 5 is not an arrangement for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3) of the Statute.

Accordingly, we find that the proposal is nonnegotiable.

IX. Proposal 6

All walls will be paneled to match existing paneling.

A. Positions of the Parties

1. Agency

The Agency argues that Proposal 6 does not address any adverse impact on unit employees because "the walls will be uniformly and 'aesthetically' . . . covered when the reconfiguration is completed[.]" Statement of Position at 40. The Agency asserts that the Union "does not explain why it has reason to believe" that employees would be adversely affected "if the entire space were finished in an equally 'aesthetically pleasing' or even more aesthetically pleasing panelling as used in the original space . . . ." Agency's Reply Brief at 8. The Agency contends that the Union "has not asked how management plans to finish the walls, and is merely assuming, incorrectly, that it would not refinish the entire area uniformly." Statement of Position at 35. According to the Agency, to the extent that the Union claims that Proposal 6 addresses the impact and implementation of management's reconfiguration of the Intelligence Section space, such a claim is premature.

The Agency contends that as this proposal is "tied to Proposal 1 regarding the Union's plan to add 660 square feet to the building," it interferes "in the same way with [the Agency's] choice of the 'method and means' to carry out its work." Id. The Agency notes, however, that to the extent that Proposal 6 "only addresses the covering to be applied to the walls of the reconfigured space as opposed to 'all walls' as it states," the Agency "has not asserted and does not assert here, that it is substantively nonnegotiable." Id.

2. Union

The Union asserts that Proposal 6 "is not tied to its proposals concerning extensions to the existing structure." Union's Response at 10. The Union states that the proposal requires that the walls be uniformly paneled, regardless of the ultimate size of the space. The Union argues that agencies are obligated to bargain over "the design and furnishings of offices unless a showing is made that the proposals violate applicable laws or regulations." Id. As no such showing was made here, the Union argues that Proposal 6 is negotiable.

B. Analysis and Conclusions

We find that Proposal 6 is negotiable.

The Union states that Proposal 6 is not linked to the expansion of the building addressed in Proposals 1 and 11, but applies to the uniformity of the paneling, regardless of building size. Consistent with the Union's statement, we interpret Proposal 6 to mean that if the parties were to agree to an expansion of the building, the paneling in the expansion would be required to match existing paneling, but that if the parties agreed not to expand the building, any paneling used in the existing space would match the paneling already in place. Consequently, Proposal 6 would apply to the expansion of the building required in Proposals 1 and 11, but would not be limited to that expansion.

The Agency claims that Proposal 6 is nonnegotiable because Proposals 1 and 11 are nonnegotiable. We have found that the first two sentences of Proposal 1 and all of Proposal 11 are negotiable. Therefore, we find that, to the extent that Proposal 6 applies to the expansion of the building required in those portions of Proposals 1 and 11 that we found negotiable, Proposal 6 is negotiable. Moreover, to the extent that the proposal addresses the paneling of walls in the reconfigured existing space, we note that the Agency states that it has not asserted that the proposal is nonnegotiable. Consequently, because the Agency did not allege any other grounds for the nonnegotiability of Proposal 6, we find that the proposal is negotiable.

X. Proposal 7

All filing cabinets will be made lockable and a safe or safe/filing cabinet combination will be provided.

A. Positions of the Parties

1. Agency

The Agency asserts that Proposal 7 is distinguishable from a proposal in American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut, 29 FLRA 990, 1012-15 (1987), reconsideration denied as to other matters, 30 FLRA 492 (1987), rev'd as to other matters, No. 87-1762 (D.C. Cir. Aug. 9, 1990) (order), requiring management to provide lockable cabinets to employees to safeguard their own possessions. In this regard, the Agency argues that Proposal 7 concerns filing cabinets "for work use in storing [G]overnment documents and materials" and thereby affects management's determination regarding the extent to which Intelligence Section documents and other materials "need to be kept secure and the specific 'method or means' chosen to effect that security." Statement of Position at 36. The Agency claims, therefore, that the proposal interferes with management's rights to determine its internal security practices and to determine the technology, methods, and means it will use in performing work.

Moreover, the Agency argues that "the fact that management has already unilaterally determined to install a combination safe in the facility does [not] render this proposal partially negotiable" merely because the Union's proposed security procedure "just happens to coincide with [management's] own reserved decision regarding the internal security needs of the Intelligence Section." Id. at 36, 37.

The Agency also argues that the proposal is not an appropriate arrangement because the Union "can only point to [a] hypothetical adverse effect that the reconfiguration would have had if management had made no such provision." Agency's Reply Brief at 8-9 (emphasis in original). The Agency maintains that as employees "will admittedly not be adversely affected if the aspect of the change[] addressed by [Proposal 7] is carried out as proposed by management[,]" Proposal 7 "is clearly not an 'arrangement' at all." Id. at 9 (emphasis omitted). Finally, the Agency disputes the Union's argument that employees could be disciplined for failing to secure documents if a safe were not provided. The Agency claims that "that management would [not] (or, indeed, could [not]) take a disciplinary action against an employee for failing to store a classified document in a safe which it did not provide[.]" Id. at n.2.

2. Union

The Union contends that Proposal 7 is an appropriate arrangement for employees adversely affected by the exercise of a management right. The Union claims that the proposal "merely require[s] the Agency to provide its employees with the proper tools with which to accomplish their assigned tasks and responsibilities." Union's Response at 11. The Union asserts that employees in the Intelligence Section are required to safeguard a variety of confidential documents and that their "[f]ailure to do so subjects them to the possibility of disciplinary action." Id. The Union argues that despite "the Agency's argument that employees would not be subjected to disciplinary action for failure to safeguard confidential material if the means to safeguard the material were not provided, past experience demonstrates that the likelihood of attempts to impose discipline for such matters is far from remote." Union's Supplemental Response at 4-5. Further, the Union states that as the Agency "concedes" that it intends to provide a locking safe for employees to use, "there can be no showing that complying with the Union's proposal would in any way constitute an undue burden upon the Agency." Union's Response at 11.

B. Analysis and Conclusions

For the following reasons, we find that Proposal 7 is nonnegotiable.

Proposal 7 requires the Agency to provide employees with lockable filing cabinets and a safe or safe/filing cabinet combination. The purpose of the proposal, as explained by the Union, is to provide employees with a way to protect the security of the materials with which they work. Proposals that require management to take specific actions to safeguard an agency's property and operations directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. See Hydrographic/Topographic Center, 44 FLRA at 643-44. See also National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 631-32 (1990).

Because Proposal 7 requires management to provide lockable filing cabinets and a safe or safe/filing cabinet combination to protect the security of agency documents, we find, consistent with Hydrographic/Topographic Center and EPA, that Proposal 7 directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. Proposal 7, therefore, is nonnegotiable unless it is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

Applying the framework established in Kansas Army National Guard, we find that the record does not establish that the proposal constitutes an arrangement within the meaning of section 7106(b)(3) of the Statute. In particular, the Union provides no support for a finding that, in the circumstances of this case, it is reasonably foreseeable that employees will be adversely affected because they will be subject to discipline as a result of the inadequacy of the Agency's security measures.

We note at the outset that the Union does not allege that the measures employed by the Agency to protect documents are inadequate. Specifically, the Union does not allege or show that the "combination safe" to be installed in the facility will be insufficient to ensure the security of all the documents that have been entrusted to employees in the course of their work. In short, there is no evidence that the equipment or the security measures used by the Agency create a risk of employee discipline.

We find, therefore, that the record does not establish that employees are adversely affected by an increased risk of discipline due to the level of the security equipment or security measures used by the Agency. Accordingly, we conclude that the Union has not demonstrated that Proposal 7 is an arrangement for employees adversely affected by the exercise of management's right to determine its internal security practices under section 7106(a)(1) of the Statute. See Association of Civilian Technicians, New York State Council and U.S. Department of Defense, National Guard Bureau, State of New York, Division of Military and Naval Affairs, 45 FLRA 17, 21 (1992) (National Guard Bureau, State of New York).

It is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet this burden acts at its peril. See Fort Jackson, 45 FLRA at 1130. The record does not contain information sufficient for us to find that the proposal constitutes an arrangement under section 7106(b)(3) of the Statute and we have determined that the proposal directly interferes with management's right to determine its internal security practices under section 7106(a)(1). We conclude, therefore, that Proposal 7 is nonnegotiable. See National Guard Bureau, State of New York, 45 FLRA at 21-22.

XI. Proposal 10

The Union representatives will be in an on duty status.

A. Positions of the Parties

1. Agency

The Agency asserts that the proposal is inconsistent with section 7131(a) of the Statute. The Agency notes that the Union interprets the proposal as providing official time for Union representatives. The Agency contends, however, that the Union's use of the term "duty status" in the proposal rather than the term "official time" is contrary to the Union's interpretation of the proposal. Further, the Agency asserts that "placing union negotiators in a 'duty' status while they are engaged in negotiations may have certain unwarranted, and indeed, illegal effects regarding their pay status, their right to reimbursement for travel expenses and the Government's responsibility for their actions[.]" Statement of Position at 38. The Agency maintains that the Union may not correct the defect in the "facially nonnegotiable" wording of the proposal. Agency's Reply Brief at 10. According to the Agency, "the fact that the [U]nion officer involved in framing the proposal may have been inexperience[d] regarding the use of terms of art such as those involved here" does not mean that the terms used in the proposal should be disregarded. Id.

2. Union

The Union asserts that the intent of Proposal 10 "is to ensure official time for the Union's negotiators" and that, therefore, the proposal "is merely a restatement of the law[.]" Union's Response at 12, 13. The Union argues that its explanation of the proposal should be accepted because the differences between the terms "on duty status" and "official time" are "very subtle." Union's Supplemental Response at 5. According to the Union, "it is very conceivable that a Local Union President inexperienced in negotiations would not be familiar with the subtle differences between the terms of art 'on duty status' and 'official time.'" Union's Response at 12-13.

B. Analysis and Conclusions

Proposal 10 states that Union representatives will be in an on duty status. We agree with the parties that there is a difference between being in a duty status and being on official time, as that term is used in section 7131(a) and (d) of the Statute. See Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 104-07 (1983). The Union explains that its intent is to ensure official time for Union negotiators. However, the Union acknowledges that its statement as to its intent is not consistent with the terms of the proposal. We interpret the Union's statement to mean that it no longer seeks a negotiability decision on Proposal 10 as worded, because the proposal as worded does not accurately reflect its objectives. Accordingly, as the Union does not continue to dispute the negotiability of

Proposal 10 as worded, we will dismiss the petition for review as to that proposal without prejudice to the right of the Union to appeal to the Authority a proposal which is reflective of its intent, if the Agency alleges that such a proposal is nonnegotiable.

XII. Order

The Agency must upon request, or as otherwise agreed to by the parties, bargain concerning the first two sentences of Proposal 1, Proposal 2, Proposal 3, the second sentence of Proposal 4, Proposal 6 and Proposal 11.⁽⁶⁾ We dismiss the petition for review as to the last sentence of Proposal 1, the first sentence of Proposal 4, Proposal 5, Proposal 7, and Proposal 10.

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FOOTNOTES:
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1. The Agency withdrew its allegations of nonnegotiability as to Proposals 8 and 9. Accordingly, we will not address Proposals 8 and 9.

2. Citing VAMC, New York, the Agency argues that the Union's petition for review should be rejected because the petition concerns proposals which merely restate proposals that were previously submitted by the Union to the Agency in November 1991. The Agency's reliance on VAMC, New York is misplaced. Unlike the situation in VAMC, New York, the November 15 allegation of nonnegotiability in this case was unsolicited and, therefore, was not an allegation from which the Union was required to file a negotiability appeal.

3. The Agency makes arguments regarding its duty to bargain with regard to several of the proposals. The Agency's arguments regarding its duty to bargain will be addressed here and will not be repeated with the individual proposals.

4. The Union opposed our consideration of the Agency's reply brief. By Order dated June 19, 1992, the Authority granted the Agency's request to file a reply brief and allowed the Union 15 days to file a response to the brief. The Union filed a timely response. Pursuant to our Order, we will consider these supplemental submissions. See 5 C.F.R. § 2424.8.

5. The Agency also contends that the Authority's excessive interference test represents an "erroneous interpretation" of appropriate arrangements under section 7106(b)(3) of the Statute. Id. at 41.

6. In finding these proposals to be negotiable, we make no judgment as to their merits.

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