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49 FLRA No. 39

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

AFL-CIO, LOCAL 2782

(Union)

and

U.S. DEPARTMENT OF COMMERCE

BUREAU OF THE CENSUS,

WASHINGTON, D.C.

(Agency)

0-NG-2151

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

March 10, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.⁽¹⁾

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of three proposals. For the reasons stated below, we find that Proposal 1, which requires the Agency to provide the Union with card key access to two office locations, is nonnegotiable. We find that Proposals 2 and 3, which require the Agency to provide the Union with information derived from the card key system, and to notify the Union of any change in the type of data collected by the card key system, are negotiable.

II. Background

According to the record, the Agency installed card key readers to control access to two of its office locations. As part of this system, individually coded card keys are issued to employees who work in each of the two locations, and to certain off-site employees who provide administrative, telecommunications and computer services to employees at the two locations. Coded cards are also issued on a temporary basis to certain non-employees, such as contractors and foreign students participating in specific Agency programs, who are temporarily located in the two buildings. According to the Agency, other off-site Agency personnel who visit either of the two locations must use telephones located on each floor to call the employee they wish to see to secure admittance to the building.

In response to the installation of the card key system, the Union submitted the proposals in dispute in this case.⁽²⁾

III. Proposal 1

The Agency will give the Union a card for each secured area using a card key security system covered under this MOU. The Union will cooperate with an investigation of a security system violation to the extent allowable by applicable law, rule and regulation.

A. Positions of the Parties

1. Agency

The Agency argues that the proposal directly interferes with management's right under section 7106(a)(1) of the Statute to determine its internal security practices. The Agency states that, as part of its internal security practices, it has installed a card key system to safeguard property and classified information maintained at those two facilities. According to the Agency, the card key system allows it to control access to each building, and to determine who has entered those buildings. The Agency asserts that the requirement in Proposal 1 to provide a card key to the Union for each location using the system directly interferes with the Agency's right to determine its internal security practices. In this connection, the Agency contends that, because the card key could be used by any of 17 Union representatives, the Agency would be unable to ascertain who entered either of the buildings, or maintain control over the security of the card keys.

The Agency also argues that the proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute. The Agency first contends, relying on Federal Labor Relations Authority v. U.S. Department of Justice, Immigration and Naturalization Service, United States Border Patrol, San Diego, California, 994 F.2d 868 (D.C. Cir. 1993) (Immigration and Naturalization Service), that there are no adverse effects resulting from the implementation of the card key system and, therefore, Proposal 1 merely creates a benefit for the Union. In this regard, the Agency asserts that it previously used combination locks to safeguard the work areas and the Union did not have access to the combinations. Further, the Agency contends that, regardless of the card key system, the Union is obligated under Article 5.8 of the parties' collective bargaining agreement to obtain permission from an appropriate supervisor before entering a work area to perform representational duties.⁽³⁾ Moreover, according to the Agency, the Union may obtain access to the facilities by telephoning the Agency's administrative liaison, or the Agency's security office 24 hours in advance.

The Agency asserts, alternatively, that the proposal is distinguishable from 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) (Huntington Park) (Member Armendariz concurring in part and dissenting in part), in which the Authority found that a proposal concerning access to a work site by a union representative was negotiable. In this connection, the Agency contends that, unlike the proposal in Huntington Park, Proposal 1 imposes an undue burden on management's right to determine its internal security practices because the "Agency would have no control over where or how the card keys are secured when they are not in use." Statement of Position at 11. The Agency further contends that it would be unable to determine which representatives accessed either of the facilities. The Agency claims that the burden on its right to determine its internal security practices outweighs any benefit to employees or the Union.

2. Union

The Union contends that the Agency has not demonstrated that it has an internal security practice which limits key cards to affected employees, as evidenced by the "plethora of . . . individuals [who] are provided card keys." Union Response at 12. Moreover, according to the Union, the Agency has already authorized the Union access to the two affected locations. Therefore, the Union argues that proposal concerns only the Union's method of access to those locations and, as such, is a negotiable procedure under section 7106(b)(2) of the Statute.

Alternatively, the Union argues that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3). According to the Union, the following adverse effects have resulted from the installation of the card key system: (1) work disruptions when employees must admit representatives into work areas; (2) possible "censure" of employees by the Agency as a result of admitting an unauthorized person into the building; (3) chilling effects on the exercise of statutory rights due to the "high visibility that . . . attaches to . . . [employee] discussion . . . with the union representative[;]" (4) difficulty in conducting health and safety investigations; (5) delays in the distribution of Union material due to the Agency's failure to "expeditiously respond" to requests for admittance to the buildings, and (6) elimination of informal meetings between management and Union representatives as a result of the "formalization of all movement" throughout the two buildings. Id. at 15-17. The Union contends that the benefits to employees in ameliorating those adverse effects outweigh any burden on the Agency.

B. Analysis and Conclusions

An agency's determination of when and how employees gain access to agency facilities constitutes exercise of the agency's right to determine its internal security practices under section 7106(a)(1) of the Statute, where that determination is reasonably connected to internal security considerations. Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 837 (1991) (Patent and Trademark Office). Where, as here, the Agency establishes a need to control access to its facilities based on the presence of confidential and classified documents, we will find that such control is a matter that comes within management's right to determine its internal security practices. See id.

Proposal 1 requires the Agency to provide a card key to the Union so that any Union representative may freely enter Agency facilities to perform representational duties. It is undisputed that the card would be accessible to any one of 17 Union representatives who are located off-site. Because the proposal obligates the Agency to provide a card key to the Union, it prevents the Agency from controlling the particular individual who will have access to the two facilities. As such, it directly interferes with the Agency's right to determine its internal security practices and, as such, is not a negotiable procedure under section 7106(b)(2) of the Statute. See, for example, National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Information Systems Command, St. Louis, Missouri, 42 FLRA 1112, 1127 (1991).

Having found that Proposal 1 directly interferes with management's right to determine its internal security practices, we next consider whether the proposal is nevertheless negotiable as an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (KANG), the Authority established an analytical framework for determining whether a proposal constitutes an appropriate arrangement. First, we determine whether the proposal constitutes an arrangement for employees adversely affected by the exercise of a management right. To do this, we ascertain whether the proposal in question seeks to address, compensate for, or prevent adverse effects on employees produced by the exercise of management's rights. See National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA No. 24 (1994) (Member Armendariz concurring in part and dissenting in part) (Department of Commerce). Second, if we conclude that the proposal is an arrangement, we then determine whether the proposal is appropriate or inappropriate because it excessively interferes with the exercise of a management right. We make this determination by weighing "the competing practical needs of employees and managers" to ascertain whether the benefit to employees flowing from the proposal outweighs the proposal's burden on the exercise of the management right or rights involved. KANG, 21 FLRA at 31-32.

We find that Proposal 1 does not constitute an arrangement. In this regard, in Department of Commerce, the Authority agreed with various court decisions that arrangements must be tailored to compensate or benefit employees suffering adverse effects from the exercise of a management right and cannot be so broad as to apply to all employees without regard to whether they are likely to suffer such adverse effects.⁽⁴⁾

The Union asserts that some employees may suffer work disruptions resulting from admitting Union representatives into the workplace. To ameliorate these disruptions, the proposal would change the Union's method of access to the two affected work locations. However, there is no basis for concluding that employees are adversely affected, through work disruptions or in other ways, by the existing methods by which the Union gains access to the locations. In this regard, the record reflects that the Union has virtually unlimited access to employees at those locations. In particular, Union representatives may contact the Agency's administrative liaison or a supervisor for admittance during normal working hours and, for admittance at other times, the Union may obtain access through the Agency's security office. Thus, contrary to the Union's contentions, employees are not hampered in seeking assistance from, or communicating with, the Union. Moreover, as it is undisputed that Union representatives may gain admittance to the two locations by contacting nonunit personnel, it is not at all clear that there are or would be any work disruptions to unit employees resulting from such contacts.⁽⁵⁾ Compare Huntington Park, 45 FLRA at 1217 (agency's policy of limiting disclosure of entrance combination only to employees assigned to a specific work site found to adversely affect employees by, among other things, requiring employees to interrupt their work to admit union representative not assigned to the work site in question).

The Union also asserts that its ability to conduct health and safety inspections is made "more difficult if not impossible" due to the lack of a card key. Union Response at 16. However, we reject this assertion because it is completely unsupported in the record before us. The parties bear the burden of creating a record on which the Authority can make a negotiability determination. Parties failing to meet their burden act at their own peril. See National Federation of Federal Employees, Local 2024 and U.S. Department of the Interior, Bureau of Land Management, Medford District Office, 48 FLRA 1411 (1994).

We also reject the Union's claim that employees would be subject to "censure" if employees admitted an unauthorized person into the workplace. Union Response at 16. The proposal concerns the method of access of Union representatives to the affected offices, and it is undisputed that Union representatives are authorized to enter the two locations. Further, even assuming an employee allowed an unauthorized person to enter the workplace, the Union has failed to demonstrate that the proposal addresses that circumstance. Finally, the Union's claim that the Agency's security system has eliminated informal meetings between management and the Union due to the "formalization of all movement" throughout the offices, is unsubstantiated. Union Response at 17. There is no indication in the record that, after having gained access to the affected locations, Union representatives are unable to meet with Agency officials, formally or informally.

In our view, Proposal 1 is not sufficiently tailored to ameliorate the adverse effects on employees from implementation of a card key system at affected Agency facilities. Accordingly, the proposal does not constitute an arrangement under section 7106(b)(3) of the Statute and is nonnegotiable.

IV. Proposal 2

To the extent not prohibited by law, rule, or regulation the Agency agrees to provide the Union with a copy of each work product, report, or other written document(s), including any on computers, resulting from the use of the information collected that are neither part of a security system investigation that could lead to disciplinary action, or [sic] any internal audit of the security system.

A. Positions of the Parties

1. Agency

Initially, the Agency argues that because the proposal does not concern conditions of employment of unit employees, the Union has failed to demonstrate that the proposal pertains to bargaining unit employees or that there is a direct connection between the proposal and the work situation of unit employees. According to the Agency, the only reports expected to be generated by its card key system are internal audits or portions of an investigation which could lead to disciplinary action.

The Agency also argues that the proposal directly interferes with management's right under section 7106(a)(1) of the Statute to determine its internal security practices because the "proposal . . . would require the Agency to submit to the Union reports concerning the effectiveness of its security system . . . ." Statement of Position at 24. The Agency also claims that the proposal does not constitute an appropriate arrangement under section 7106(b)(3). The Agency argues that "the burden on the Agency of disclosing information regarding the effectiveness of its system . . . would outweigh any possible benefit to employees." Id.

2. Union

The Union argues that the proposal concerns conditions of employment. According to the Union, the proposal concerns records which are part of a security system which is "used in the administration of . . . work rules and to support personnel actions against employees for failure to comply with the work rules." Union Response at 11.

The Union also contends that the proposal pertains to "information not encompassed by 5 U.S.C. § 7114(b)(4)."⁽⁶⁾ Petition for Review at 2. The Union claims that it is not seeking information which would interfere with the Agency's right to determine internal security practices. According to the Union, the proposal specifically excludes information which is part of an investigation, or "another internal security purpose." Id. The Union asserts that the proposal seeks "records which can legally be furnished to [it] and which 'result[] from the use of the information collected' via the . . . [system]." Id. at 14. The Union also contends that the proposal is an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

To determine whether a proposal concerns conditions of employment of bargaining unit employees, the Authority considers whether the proposal pertains to unit employees and the nature and extent of the effect of the matter proposed on the working conditions of those employees. Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 236-37 (1986). The proposal here concerns the Agency's security system, which controls employee access to the work site. Further, the Union asserts, and the Agency does not dispute, that the Agency has established "work rules governing access to its premises," and that information collected by the system will be used in the Agency's administration and enforcement of those rules. Union Response at 11. Therefore, we conclude that the proposal concerns the conditions of employment of bargaining unit employees.

The duty to bargain under the Statute extends to the release and disclosure of information concerning the conditions of employment of unit employees to the extent that the disclosure is not contrary to law or regulation. For example, 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, 1425 (1992) (Proposals 3 and 4). In negotiability cases involving proposals that require an agency to release information to a union, the "issue is not what information the Union is entitled to by law, but, rather, what it may bargain for." National Treasury Employees Union, Chapters 243 and 245, and U.S. Department of Commerce, Patent and Trademark Office, 45 FLRA 270, 275 (1992) (quoting Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783, 815 (1991)). In this regard, the entitlement to information under section 7114(b)(4) is a "statutory floor and not a ceiling." Id. at 276.

The Agency argues that Proposal 2 directly interferes with its right to determine its internal security practices because, according to the Agency, the proposal would require the Agency to submit to the Union reports concerning the effectiveness of its security system. We disagree. The plain wording of the proposal specifically excludes information concerning any internal audit of the security system. The proposal requires the Agency to provide the Union, to the extent not prohibited by law, rule or regulation, with general information concerning the security system that does not relate to internal security investigations or to any evaluation of the effectiveness of the system. Thus, we find that the proposal does not interfere with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.⁽⁷⁾ As the Agency has not asserted any other basis on which to find the proposal nonnegotiable, and none is apparent to us, we conclude that Proposal 2 is negotiable.

V. Proposal 3

The Agency shall notify the Union of any changes to the type of information collected by the security system except for internal system check data which normally would not be used as evidence leading to a disciplinary action. Any such notification shall be in accordance with Article 2.4 of the current Labor Agreement. (emphasis in original).

A. Positions of the Parties

1. Agency

The Agency contends that the proposal is nonnegotiable because it does not concern conditions of employment of unit employees. According to the Agency, it is unaware of any anticipated changes in the information collected by the card key system. Moreover, the Agency asserts that the system could be required to collect information which relates only to the technology of the system, and which has nothing to do with bargaining unit employees. The Agency contends that, under Proposal 3, the Union would have to be notified of any such change, whether or not the change it was related to a subject within the scope of bargaining.

The Agency also argues that the Union is attempting to obligate the Agency to negotiate over nonnegotiable matters. The Agency maintains that Article 2.4 of the parties' agreement specifies the type of notice required when the Agency exercises a management right, as well as the procedures for bargaining.⁽⁸⁾ The Agency claims that the Union would not have incorporated Article 2.4 into the proposal if "it did not intend for the proposal to include nonnegotiable matters." Statement of Position at 26.

2. Union

The Union contends that the proposal merely requires the Agency to provide it with notice of a change in the type of information extracted from the card key system. The Union also contends that the proposal does not interfere with the Agency's internal security practices because the proposal does not require the Agency to disclose the contents of any records or investigations stemming from the Agency's use of the card key system.

B. Analysis and Conclusions

For the reasons discussed earlier in conjunction with Proposal 2, we conclude that Proposal 3 concerns conditions of employment. Moreover, consistent with its plain wording, Proposal 3 merely obligates the Agency to provide the Union with notice of any change in the type of information maintained by the card key system, in compliance with Article 2.4 of the parties' collective bargaining agreement. Contrary to the Agency's assertions, the proposal does not obligate the Agency to negotiate over nonnegotiable matters. As the Agency has not asserted any other basis on which to find Proposal 2 nonnegotiable, and none is apparent to us, we conclude that the proposal is negotiable.

VI. Order

The Agency shall, upon request, or as otherwise agreed to by the parties, bargain on Proposals 2 and 3.⁽⁹⁾ The petition for review is dismissed as to Proposal 1.

Member Armendariz, Concurring as to Proposal 1

While I agree that Proposal 1 is nonnegotiable, I write separately because I cannot join my colleagues in their analysis. I agree with my colleagues that Proposal 1 directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute, for the reasons stated by them. However, I cannot join in their appropriate arrangement analysis. Consistent with National Labor Relations Board v. FLRA, 2 F.3d 1190 (D.C. Cir. 1993), United States Department of Justice, Immigration and Naturalization Service v. FLRA, 975 F.2d 218 (5th Cir. 1992), United States Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158 (D.C. Cir. 1992), and my separate opinion in National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA No. 24 (1994) (Member Armendariz, concurring in part and dissenting in part), in my view, in order for a proposal to constitute an arrangement within the meaning of section 7106(b)(3) of the Statute, it must be tailored so as to benefit or compensate only those employees who would suffer an identifiable adverse effect as a result of an exercise of a management right. Even assuming that Proposal 1 is an arrangement within the meaning of section 7106(b)(3) of the Statute, I would find, for the reasons set forth in my separate opinion 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, concurring in part and dissenting in part), that Proposal 1 excessively interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. Having concluded that Proposal 1 excessively interferes with management's right, I concur with my colleagues' conclusion that Proposal 1 is nonnegotiable.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Member Armendariz' opinion, concurring as to Proposal 1, is set forth at the end of this decision.

2. The Agency requested permission to file a supplemental submission to refute contentions set forth in the Union's reply brief. However, as the Agency filed a statement of position in which it addressed Union assertions concerning the negotiability of the proposals, including whether the proposals constitute appropriate arrangements under section 7106(b)(3) of the Statute, we find no basis on which to grant the Agency's request. Consequently, we reject the Agency's request to file a supplemental submission. In view of our rejection of the Agency's request to file a supplemental submission, it is unnecessary for us to address the Union's request to file a reply to the Agency's supplemental submission.

3. Article 5.8 of the parties' agreement provides, in pertinent part:

Officers and stewards who must enter a work area in the exercise of legitimate representational duties under this contract must request and receive permission from the supervisor of that work area in advance.

Exhibit 5 to Statement of Position.

4. However, the Authority Members disagreed on whether Provision 4 in Department of Commerce constituted an arrangement. Chairman McKee and Member Talkin concluded that the provision, which was prophylactic in nature and was not tailored to benefit only those employees who actually would be adversely affected, constituted an arrangement because, among other things, its scope was limited to those employees who likely would be so affected. 49 FLRA No. 24, slip op. at 16. Member Armendariz concluded that the provision did not constitute an arrangement because it was not tailored to benefit only those employees who would be adversely affected by management's action. Id. at slip op. at 37.

5. It also is undisputed that Union representatives already are required under the parties' collective bargaining agreement to obtain advance approval from the supervisor of a work area before entering the area to perform representational duties. See Statement of Position at 14 n.11.

6. Section 7114(b)(4) of the Statute provides, in pertinent part, that the duty of an agency and an exclusive representative to negotiate in good faith includes the obligation of an agency to furnish to a union, to the extent not prohibited by law, information:

(A) which is normally maintained by the agency in the regular course of business;

(B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and

(C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining . . . .

7. In light of this determination, it is not necessary to address the Agency's contention that the proposal does not constitute an appropriate arrangement.

8. Article 2.4 of the parties' agreement provides, in pertinent part:

When, during the life of this Agreement, the Employer proposes to exercise one of its rights under 5 U.S.C. [§] 7106, and this exercise gives the Union the right to bargain the impact and implementation of the change, the Employer will notify the Union President, in writing, setting forth the proposed change. The Union must request bargaining, if it so desires, in writing . . . .

Exhibit 5 to Statement of Position.

9. In finding those proposals to be negotiable, we make no judgment as to their merits.

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