[ v56 p398 ]
56 FLRA No. 56
DEPARTMENT OF THE TREASURY
UNITED STATES CUSTOMS SERVICE
EL PASO, TEXAS
(Respondent)
and
NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 143
(Charging Party)
AND
DEPARTMENT OF THE TREASURY
UNITED STATES CUSTOMS SERVICE
NEW ORLEANS, LOUISIANA
(Respondent)
and
NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 168
(Charging Party)
DA-CA-60047
DA-CA-60048
_____
DECISION AND ORDER
May 16, 2000
_____
Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member. [n1]
I. Statement of the Case
This unfair labor practice case is before the Authority on the Respondent's exceptions to the attached decision of the Administrative Law Judge on remand from the Authority in Department of the Treasury, United States Customs Service, El Paso, Texas and Department of the Treasury, United States Customs Service, New Orleans, Louisiana, 55 FLRA 43 (1998) (Customs).
In Customs, the Authority remanded the case to the Judge to "analyze the record" as required by Authority precedent to determine whether "the Respondent's assertion that videotaping employee interviews constituted the exercise of management's reserved right under section 7106(a)(1) of the [Federal Service Labor-Management Relations Statute (the Statute)] to determine its internal security practices." Id. at 48.
On remand, the Judge found that the Respondent failed to show that videotaping employee interviews constituted the exercise of a reserved management right under section 7106(a)(1) of the Statute to determine its internal security practices. Accordingly, he concluded that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to give the Union notice and an opportunity to bargain over its decision to videotape employee interviews prior to changing conditions of employment.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision.
II. Background
A. Facts and Judge's Original Decision
The facts of this case are set forth in Customs, 55 FLRA 43, and are only briefly summarized here. On September 20, 1995, a Union representative questioned the absence of the usual microphones at a unit employee's interview in El Paso, and learned from an Internal Affairs (IA) agent that the Respondent was videotaping the interview. At about the same time, another Union representative learned that the Respondent had videotaped an interview in New Orleans. The Union representative called the Chapter President, who brought the matter to the attention of the Respondent's Center Director.
At a bargaining session in October 1995, the Union raised the issue of the videotaping. The parties reached a tentative agreement that permitted the Respondent to videotape, but also afforded employees the right to request a copy of the recording. However, the Respondent ultimately disapproved this tentative agreement, and it was not made part of the parties' final collective bargaining agreement.
On October 30, 1995, the Union filed two unfair labor practice charges concerning the Respondent's videotaping of employee interviews in El Paso and New Orleans, respectively. Thereafter, the General Counsel issued a consolidated complaint alleging that the Respondent violated section 7116(a)(1) and (5) of the Statute by implementing the decision to videotape interviews of bargaining unit employees conducted by IA agents without notifying and bargaining with the Union [ v56 p399 ] to the extent required by the Statute. The Judge concluded that the Respondent had violated the Statute as alleged. The Respondent filed exceptions to the Judge's decision.
B. The Authority's Decision in 55 FLRA 43
The Respondent excepted to the Judge's decision on the grounds that the: (1) ULP charges were untimely; (2) videotape recording of employees during IA investigations is covered by the parties' collective bargaining agreement; and (3) videotape recording of employees during IA investigations is an internal security practice under section 7106(a)(1) of the Statute, and therefore, the Respondent has no duty to bargain on the matter. On December 31, 1998, the Authority issued its decision in 55 FLRA 43, and rejected the Respondent's defenses with respect to the first and second grounds. However, the Authority remanded the third ground to the Judge.
With respect to the third ground, the Authority stated that the right to determine the internal security practices of an agency "includes the policing of its own employees." Customs, 55 FLRA at 47. The Authority stated that neither the Judge nor the parties had cited any Authority case that determined whether the videotaping of employee interviews constitutes an internal security practice. However, the Authority referenced cases concerning polygraph examinations, where the Authority found that "techniques aimed at obtaining truthful and reliable information from interviewees may constitute internal security practices under section 7106(a)(1)." Id. quoting American Federation of Government Employees, Federal Prison Council 33 and U.S. Department of Justice, Federal Bureau of Prisons, 51 FLRA 1112, 1115-16 (1996) (Federal Bureau of Prisons), the Authority stated:
It is well-established that management's right to determine its internal security practices under section 7106(a)(1) includes the authority to determine the policies and practices that are part of its plan to secure or safeguard its personnel, physical property or operations against internal and external risks. E.g., National Association of Government Employees, Locals R14-22 and R14-89 and U.S. Department of the Army, Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, 45 FLRA 949, 960 (1992). The Authority has concluded that, where management shows a link, or reasonable connection, between its objective of safeguarding its personnel, property or operations and the investigative technique designed to implement that objective, a proposal that "conflicts with" the selected investigative technique directly interferes with management's right under section 7106(a)(1). Id. at 961. The right includes the authority to determine the investigative techniques management will employ to attain its internal security objectives. Id. at 960. In addition, techniques aimed at obtaining truthful and reliable information from interviewees constitute internal security practices under section 7106(a)(1). E.g., National Federation of Federal Employees, Local 1300 and General Services Administration, 18 FLRA 789, 798 (1985) (GSA) (proposal barring sworn statements in certain circumstances held to directly interfere with management's right to determine internal security practices).
Customs, 55 FLRA at 47.
The Authority determined that the question yet to be resolved was whether the Respondent has established a reasonable connection between its decision to videotape employee interviews and the objective of safeguarding its personnel, property or operations. The Authority found that the Judge did not analyze the record as required by the referenced Authority precedent. Specifically, he did not "determine whether the Respondent established a reasonable connection between its decision to videotape employee interviews and its objective of safeguarding the Agency's personnel, property or operations." Id. at 48. Accordingly, the Authority remanded the case to the Judge for this purpose.
The Authority directed that, if on remand the Judge concluded that the Respondent had failed to establish a reasonable connection, then the admitted unilateral implementation of the decision to videotape employee interviews would constitute an unfair labor practice requiring rescission of the practice until the Union has received notice and an opportunity to negotiate whether employee interviews will be videotaped. On the other hand, if the Judge concluded that the Respondent has established the necessary reasonable connection, then implementation of the decision to videotape employee interviews without notifying the Union and providing it an opportunity to bargain over the impact and implementation of that decision would constitute an unfair labor practice unless the change in unit employees' conditions of employment was de minimis. Noting that the Respondent had not excepted to the Judge's finding that the change had more than a de minimis effect on unit employees, the Authority adopted this finding without reviewing it. Accordingly, the Authority [ v56 p400 ] remanded the case to the Judge for "appropriate findings, consistent with [the] decision." Id.
III. Judge's Decision on Remand
Applying the test for determining whether an agency's practice constitutes an internal security practice set out in Federal Bureau of Prisons, the Judge found that the record did not "show that video-taping of witness interviews is part of any plan to secure or safeguard the personnel, physical property or operations of [the] Respondent . . . ; nor has Respondent shown a link, or reasonable connection between its objective of safeguarding its personnel, property or operations." Judge's Decision at 8. In so finding, the Judge evaluated record testimony. The Judge found that, according to a Union witness, Agent Fortunato of the New Orleans Office of IA, stated that "'the reason for videotaping . . . was to detect whether the employee was lying or not by what was captured by his body language on the videotape.'" Id. at 9 (quoting Transcript (Tr.) at 61). The Judge further found that Agent Fortunato testified that the employee was videotaped because:
. . . it was regarding the investigation of the employee who had been arrested and failed to report the arrest to his managers or the Office of Internal Affairs as described by the policies and procedures manual. The employee had been the target of an Internal Affairs investigation just prior to, within several weeks to maybe a few months. The nature of the violations that he was arrested for involved assaults and physical batteries, as they were. One involved a domestic violence. (Tr. 113)
. . . .
. . . a domestic violence situation where the employee was alleged to have physically assaulted his wife. The other . . . allegation was that he had threatened to kill someone who was trespassing on his property. Based on that, the fact that the crimes involved physical violence, . . . we felt it would warrant the videotaping of the interview. (Tr. 114)
Id. at 9-10 (emphasis omitted).
Evaluating this testimony, the Judge found that neither the employee's conduct, nor the objective of the investigation, showed any connection to the safeguarding of Agency personnel, property or operations. The Judge found that Agent Fortunato's assertion that the videotaping was to determine the employee's credibility--"'his body language on the videotape[]'--was not pursuant to Agency policy or plan to videotape all interviews but was a random, one time in seven and one-half years, selection because of alleged off-premises violence . . . and was not shown to have any reasonable relationship to any plan to secure or safeguard Respondent's personnel, physical property or operations." Id. at 10 (quoting Tr. at 61).
The Judge further examined Agent Doyle Walker's testimony. The Judge found that Agent Walker testified that the Texas Office of IA videotaped 20 to 25 percent of its interviews because "'it's the best evidence of an interview that you can have.'" Id. (quoting Tr. at 122). The Judge found that Agent Walker testified in response to the following:
Q: . . . is somehow the videotaping, the sound is better or something that makes it more understandable . . .
A: No, ma, am. But there's more to a conversation or an interview than just the verbal content. There's body language that goes on. There's facial expressions, which you don't capture on audio recordings. (Tr. 128)
[. . . .]
Q: . . . Is it true that the reason you wanted to videotape is so that you can determine by the demeanor of the person being interviewed . . . whether or not they were telling the truth?
A. That is part of it . . . . The other part is it also protects us from being accused of using coercive gestures and mannerisms. (Tr. 129)
Id. at 10-11.
The Judge evaluated the testimony and found "[t]hat a video is the best evidence of an interview is not doubted and is well supported by the widespread use of video depositions in civil jury trials." Id. at 11. The Judge determined that the Respondent's contention that the videotape protects both sides was unsupported and that the Respondent's contention "really [came] down to demeanor, as recorded on videotape, to determine credibility." Id. The Judge found that even though the Texas IA office "videotaped nearly one-fourth of their interviews . . . it, nevertheless, was not part of the Agency's plan or policy to videotape all interviews." Id.
The Judge further determined that Respondent's witnesses: (1) offered no evidence that Respondent utilizes any criteria which is related to internal security to determine whether or not the investigative interviews should be videotaped or which employees should be videotaped; and (2) did not assert that the allegations of [ v56 p401 ] physical violence directed against the employee that occurred outside of the workplace were related in any way to the maintenance of Respondent's internal security. The Judge found that there was no evidence in the record to show that the videotapes made by the Respondent are viewed by Respondent officials who were not present during the interview to evaluate the demeanor of the employee. The Judge also found, contrary to the Respondent's assertion, that a provision in National Treasury Employees Union and U.S. Department of the Treasury, U.S. Customs Service, Washington, D.C., Case No. 0-NG-2356 (July 9, 1998) (Department of the Treasury) was distinguishable from this case. [n2]
Accordingly, the Judge found that the Respondent's decision to videotape the employee interviews was negotiable and the Respondent was obligated to give the Union notice and an opportunity to bargain before videotaping employee interviews. The Judge further found that even if videotape recording of employee interviews was a reserved management right, management was still obligated to bargain over the change which had more than a de minimis impact on unit employees. Consequently the Judge found that the Respondent violated section 7116(a)(1) and (5) of the Statute.
IV. Positions of the Parties
A. Respondent's Exceptions
Citing the test set forth in Customs for determining whether a matter constitutes an internal security practice under section 7106(a)(1) of the Statute, the Respondent particularly notes that the right includes the authority to determine the investigative techniques management will employ to attain its internal security objectives. The Respondent also notes that techniques aimed at obtaining truthful and reliable information from interviewees constitute internal security practices under section 7106(a)(1).
The Respondent asserts that it is "a law enforcement agency" and that its Office of IA is responsible for ensuring that Customs personnel comply with all operating policies, practices, and procedures. Exceptions at 3. The Respondent describes reasons why its practice constitutes an internal security practice. First, the Respondent asserts that "its practice of videotaping employee interviews is an investigative technique employed by the Office of [IA] to record the physical demeanor of the interviewee as [the interviewee] relates his[/her] version of the events in question." Id. at 4. The Respondent contends that this "investigative technique is aimed at obtaining truthful and reliable information from interviewees." Id.
The Respondent further argues that "videotaping is analogous to polygraph examination in that both . . . techniques permit the recordation of . . . physical cues for later examination by the investigators in their attempt to more accurately assess the truthfulness or reliability of the employee's responses." Id. In support, the Respondent cites American Federation of Government Employees, AFL-CIO, Local 1808 and Department of the Army, Sierra Army Depot, 30 FLRA 1236, 1240 (1988), which it claims allows agencies wide latitude in their assessments of the efficacy of the internal security practice selected; and American Federation of Government Employees, AFL-CIO, Local 1858 and Army Missile Command, Redstone Arsenal, Alabama, 10 FLRA 440 (1982).
Second, the Respondent asserts that videotaping is connected to its objective of safeguarding personnel, property, or operations because it provides a visual record of the actual interview which can later serve as evidence should the integrity of the interview process be questioned.
Third, the Respondent contends that videotaped interviews serve the objective of "safeguarding personnel, property, or operations in that the video camera stands in witness to potential physical altercations that may occur during the interview process." Exceptions at 5. The Respondent asserts that the videotaped interview is particularly relevant to investigations such as the one in New Orleans, "which involved an employee's alleged failure to report an arrest for assault." Id. The Respondent contends that the Judge erred when he stated that the videotaping of the employee was "'random'" and "'was not shown to have any reasonable relationship to any plan to secure or safeguard Respondent's personnel, physical property or operations.'" Id. at 6 (quoting Judge's Decision at 10.). The Respondent asserts that the employee "had already demonstrated a propensity for violence, and the experience of Agent Fortunato lead him to believe that he would be best protected by videotaping this interview." Id.
The Respondent takes issue with the Judge's reliance on the testimony of a certain Union witness concerning a conversation with Agent Fortunato and submitted an affidavit of Agent Fortunato which it claims provides an accurate account of the conversation. [ v56 p402 ]
The Respondent contends that, contrary to the Judge's statement that all interviews must be videotaped in order for videotaping to be a part of the Agency's internal security practice, the Assistant Commissioner of IA testified that the Office of IA "does not videotape all interviews of employees, but rather interviews are videotaped at the discretion of the investigator." Id. The Respondent argues, based on the above, that a reasonable connection exists between its objective of safeguarding personnel, property, or operations, and its practice of videotaping employee interviews.
The Respondent cites Department of the Treasury in support for its position that videotaping is not subject to impact and implementation bargaining.
B. General Counsel's Opposition
The General Counsel asserts that there is no evidence in the record to support any of the Respondent's arguments, "which is demonstrated by the fact that [the] Respondent[] did not refer to any citations to the record in [its] exceptions." Opposition at 4. Referencing section 2423.40(a)(2) of the Authority's Regulations, the General Counsel contends that the Respondent's failure "to refer to any citations to the record in its exceptions is in effect an admission that the record contains no facts to support their contention that the videotaping of employee interviews constitutes an internal security practice." Id. at 5. The General Counsel argues, therefore, that the Respondent's exceptions constitute nothing more than a statement of position and, thus, should be disregarded by the Authority. The General Counsel also references its brief to the Judge as further support for its position that the record does not support Respondent's assertions.
Referencing section 2429.5 of the Authority's Regulations, the General Counsel requests the Authority to disregard the affidavit submitted by the Respondent in its exceptions because the Respondent is seeking to introduce evidence that was not offered at the hearing.
V. Analysis and Conclusions
A. The Respondent's Videotape Recording of Employees During Internal Affairs Investigations Constitutes an Internal Security Practice under section 7106(a)(1) of the Statute
1. Preliminary Matters
We reject the General Counsel's assertion that the Respondent's failure to include with its exceptions citations to the record constitutes an admission that there is no evidence in the record to support its argument that the videotaping of employee interviews constitutes an internal security practice, and, as such the arguments should be disregarded. We find that the Respondent's exceptions adequately set forth relevant facts to support the arguments presented in its exceptions.
Further, to the extent the General Counsel's assertion suggests that the exceptions fail to satisfy a requirement of section 2423.40(a)(2) of the Authority's Regulations because they fail to include citations to the record, we find that under Authority precedent interpreting the former section, the exceptions would satisfy the requirements of section 2423.40(a)(2). [n3] See U.S. Department of Veteran Affairs, Medical Center, Long Beach, California, 39 FLRA 1347, 1347-48 n.* (1991). As there is no substantive difference between section 2424.40(a)(2) and the former section, we find that the exceptions satisfy the requirements of section 2423.40. Accordingly, based on the above, we deny the General Counsel's request.
As to the subject affidavit, section 2429.5 of the Authority's Regulations provides that the Authority will not consider evidence that was not presented in the proceedings before the Administrative Law Judge. The affidavit of Respondent's witness who testified at the hearing was not presented to the Judge. Although the affidavit addresses the Judge's decision, it refutes material in the record on matters that were before the Judge. The Authority will not consider evidence that was not presented in the proceedings before the Judge. Therefore, [ v56 p403 ] the affidavit will not be considered. See, e.g., U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, Coast and Geodetic Survey, Aeronautical Charting Division, Washington, D.C., 54 FLRA 987, 1004-05 n.10 (1998) (NOAA). Accordingly, we grant the General Counsel's request.
2. Merits
The question to be resolved is whether the Judge erred in concluding that the Respondent did not establish a reasonable connection between its decision to videotape record employee interviews and the objective of safeguarding its personnel, property, or operations.
As stated in Section II.B., above, the Authority has held that an agency's right to determine its internal security practices include the policing of its own employees. The right to determine its internal security practices also includes the right to determine the investigative techniques management will employ to attain its internal security objectives. In addition, subject to a legitimate link with internal security, techniques aimed at obtaining truthful and reliable information from interviewees constitute internal security practices under section 7106(a)(1). Customs, 55 FLRA at 47. Under long-standing precedent, where management shows a link, or reasonable connection, between its objective of safeguarding its personnel, property or operations and the investigative technique designed to implement that objective, a proposal that "conflicts with" the selected investigative technique directly interferes with management's right under section 7106(a)(1). Id. (quoting National Association of Government Employees, Locals R14-22 and R14-89 and U.S. Department of the Army, Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, 45 FLRA 949, 961 (1992)).
Authority precedent does not specifically define what is meant by "safeguarding" but it encompasses actions taken by an agency to prevent misconduct or threats to personnel, property or operations, including an agency's choice of the investigative techniques that it will use to obtain probative evidence regarding misconduct. For example, in Federal Bureau of Prisons, 51 FLRA at 1116, the Authority found that the agency established, as an investigative technique, the requirement that investigators not ask certain interviewees to review and sign a certain form. The Authority stating that "there is a clear and logical connection between techniques designed to promote candid and truthful answers during investigations of employee wrongdoing and the [a]gency's objective to safeguard its personnel, property, or operations" found that the agency established a reasonable link between its practice and the objective of safeguarding its personnel, property or operations. Id.
Additionally, in Department of Veterans Affairs Medical Center, Denver, Colorado, 52 FLRA 16, 35-37 (1996), the investigative technique of using a covert video camera to uncover misconduct was found to constitute an internal security practice. In GSA, 18 FLRA at 798, the Authority found that an agency's decision to use sworn (rather than unsworn statements) to ensure its obtaining truthful and reliable information in conducting investigations is an internal security practice under section 7106(a)(1); and also, found that an agency's use of polygraph tests constituted an internal security practice because it was an investigative technique used by the agency to conduct its investigations.
We now apply the above Authority law to this case. The Respondent argues that it established that its decision to videotape record employee interviews constitutes an internal security practice. Specifically, the Respondent argues that its practice of videotape recording employee interviews: (1) is an investigative technique employed by the Office of IA to record the physical demeanor of the interviewee--that is, it is aimed at obtaining truthful and reliable information from interviewees; (2) is analogous to polygraph examination in that both techniques permit the recordation of physical responses for later examination by investigators in their attempt to more accurately assess the truthfulness or reliability of the employee's response; (3) is connected to the Agency's objective of safeguarding personnel, property, or operations because it provides a visual record of the actual interview which can later serve as evidence should the integrity of the interview process be questioned; and (4) safeguards personnel, property, or operations in that the video camera stands in witness to potential physical altercations that may occur during the interview process and further has a calming effect on witnesses.
With respect to the Respondent's first argument, the Judge acknowledged that "a video is the best evidence of an interview," which is "well supported by the widespread use of video depositions in civil jury trials." Judge's Decision at 11. However, the Judge found that the Respondent did not establish that videotape recording an interviewee to capture the employee's demeanor had any reasonable relationship to any plan to secure or safeguard Respondent's personnel, physical property, or operations. [ v56 p404 ]
Contrary to the Judge, the record supports a conclusion that the Respondent established a reasonable link between its investigative technique--videotape recording an employee subject to an investigation by the Office of IA, to capture the demeanor of the employee interviewee--and its objective of safeguarding its personnel, property, or operations. In this regard, the record shows that the Respondent, a law enforcement agency, Office of IA, is responsible for conducting investigative interviews concerning employee misconduct and that the "mission of the Office of Internal Affairs is to assist executive management and the Commissioner of Customs with preserving the overall integrity of the Customs Service." See Tr. at 102. See also Judge's October 31, 1997 Decision at 8-9 and General Counsel's Exhibit (G.C. Exh.) 6. The record further shows that the subject of the New Orleans interview was being investigated because he failed to report certain arrests to the Office of IA as described by the Respondent's policies and procedures manual and that a reason for videotape recording the employee was "to determine [his] credibility," that is, to "detect whether the employee was lying or not by what was captured by his body language on the videotape." Judge's Decision at 10, Tr. at 61.
The record also shows that an IA Agent from Texas, testified that his office "videotaped 20 to 25 percent of its interviews" because "it is the best evidence of an interview that you can have." Id. at 10, Tr. at 122. In terms of videotaping verses audio, the Agent testified "'there's more to a conversation . . . than just the verbal content. There's body language . . . facial expressions, which you don't capture on audio recordings.'" Id., (quoting Tr. at 128).
Based on the above, we find that the evidence shows that in New Orleans and Texas, the videotape was used by the IA office as an investigative technique to obtain truthful and reliable information in the conduct of employee investigative interviews. This use of the videotape to discern truth via body language or the demeanor of the witness in an investigative interview is as legitimate as obtaining "truthful and reliable" information from a witness through a polygraph test. Moreover, even the Judge recognized that the video is the best evidence of an interview. Judge's Decision at 11. However, the Judge rejected this reason because videotape recording employee interviews "was not part of the Agency's plan or policy to videotape all interviews." Id.
The Judge's rejection of the Respondent's argument on the basis that the Respondent did not videotape all interviews is erroneous because the discretion to determine under what circumstances certain security action is warranted is an integral part of an agency's plan to determine its internal security practices. See American Federation of Government Employees, AFL-CIO, Local 2302 and U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, 19 FLRA 778, 782 (1985) (U.S. Army Armor Center) (Authority found that the discretion to determine under what circumstances certain security action was warranted was an integral part of the agency, a military installation, plan to determine its internal security practices); GSA, 18 FLRA at 799 (the Authority found that management has the discretion to determine the practices (sworn rather than unsworn statements) it will use to ensure its obtaining of truthful and reliable information in conducting investigations); Federal Employees Metal Trades Council and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 12 FLRA 361, 362 (1983) (Department of the Navy) (a proposal that sought to require the agency to extend its security practice to all employees was found outside the duty to bargain because it conflicted with the agency's decision to limit the application of the security practice).
Here, the Assistant Commissioner of IA testified that the Office of IA does not videotape all interviews of employees, but rather interviews are videotaped at the "discretion of the investigator." Judge's Decision at 11, Tr. at 104. The evidence shows, therefore, that the Agency decided not to videotape record all investigative interviews, but left the discretion to determine what interviews needed to be videotaped to the discretion of the investigator. We find that the videotaping of all internal affairs interviews need not be undertaken by the Respondent in order for such technique to be considered a part of its internal security plan. Rather, consistent with the Authority decisions cited above, predicated on an actual link to internal security, the Respondent has the right to determine under what circumstances internal affairs investigative interviews will be videotaped. Accordingly, the Judge erred by finding that videotape recording employee interviews was not part of the Agency's plan or policy because the Respondent did not videotape all interviews. See, e.g., U.S. Army Armor Center; Department of the Navy.
Based on the above, we find that the Respondent established a reasonable link between its objective of safeguarding its personnel, property or operations and its investigative technique of videotape recording employees subject to IA investigations. Accordingly, the practice constitutes an internal security practice under section 7106(a)(1) of the Statute. [n4] [ v56 p405 ]
B. The Respondent Violated section 7116(a)(1) and (5) of the Statute by Failing to Bargain over the Impact and Implementation of its Decision to Videotape Record Interviews of Employees Subject to IA Investigations
In Customs, 55 FLRA at 48, the Authority stated that if the Respondent established the necessary reasonable connection, then implementation of the decision to videotape employee interviews without providing the Union an opportunity to bargain over the impact and implementation of that decision would constitute an unfair labor practice unless the change in unit employees' conditions of employment was de minimis. The Authority noted that the Judge had found that the change had more than a de minimis effect on unit employees. As the Respondent did not except to the Judge's finding, the Authority adopted the finding.
Therefore, the Respondent's decision to videotape record employees' interviews had more than a de minimis effect on unit employees. Consequently, the Respondent is obligated to bargain over the impact and implementation of the change in employees' conditions of employment. Additionally, the Respondent's reliance on Department of the Treasury, to support its claim that it is not obligated to bargain over the impact and implementation over the change in this case is inappropriate because that case concerned different circumstances.
Accordingly, we find that the Respondent violated section 7116(a)(1) and (5) of the Statute by changing a condition of employment without giving the Union notice and an opportunity to bargain over the impact and implementation of the change.
Having found that the Respondent committed an unfair labor practice based on its failure to notify the Union and bargain over the impact and implementation of the change, and in the absence of any exception to the scope of the Judge's remedy, we modify the Judge's recommended order, where it concerns the Respondent's obligation to bargain, to add language that limits the scope of bargaining to impact and implementation of the change.
VI. Order
Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of the Treasury, United States Customs Service shall:
1. Cease and desist from:
(a) Changing conditions of employment of bargaining unit employees at El Paso, or at New Orleans, Louisiana, by videotaping employee interviews without giving the National Treasury Employees Union (NTEU), the exclusive representative of its employees, notice and opportunity to bargain over the impact and implementation of its decision to videotape employee interviews.
(b) In any like or related manner interfering with, restraining or coercing bargaining unit employees at New Orleans, Louisiana, or El Paso, Texas in the exercise of their rights assured them by the Statute.
2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute:
(a) Upon request of NTEU, provide any employee at El Paso, Texas, and any employee at New Orleans, Louisiana, whose interview has been videotaped, a copy of the videotape if the employee has not previously been furnished a copy of the videotape.
(b) Upon request of NTEU, discuss the use of any videotape made of any employee interview at El Paso, Texas, or at New Orleans, Louisiana.
(c) Before videotaping any employee interview at El Paso, Texas, or at New Orleans, Louisiana, give NTEU notice and, upon request, bargain on the impact and implementation of such decision.
(d) Post at its facilities in El Paso, Texas, and in New Orleans, Louisiana, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commissioner of Customs and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places at El Paso, Texas, and at New Orleans, Louisiana, where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.
(e) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Dallas Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. [ v56 p406 ]
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the Department of the Treasury, United States Customs Service violated the Federal Service Labor-Management Relations Statute (the Statute) and has ordered us to post and abide by this Notice.
We hereby notify bargaining unit employees at El Paso, Texas and at New Orleans, Louisiana, that:
WE WILL NOT change conditions of employment of bargaining unit employees at El Paso, Texas or at New Orleans, Louisiana, by videotaping employee interviews without giving the National Treasury Employees Union (NTEU), the exclusive representative of our employees, notice and opportunity to bargain over the impact and implementation of our decision to videotape employee interviews.
WE WILL NOT in any like or related manner interfere with, restrain or coerce our bargaining unit employees at El Paso, Texas or at New Orleans, Louisiana, in the exercise of their rights assured them by the Statute.
WE WILL, upon request of NTEU, provide any employee at El Paso, Texas, and any employee at New Orleans, Louisiana, whose interview has been videotaped, a copy of the videotape if the employee has not previously been furnished a copy of the videotape.
WE WILL, upon request of NTEU, discuss the use of any videotape made of any employee interview at El Paso, Texas or at New Orleans, Louisiana.
WE WILL, before videotaping any employee interview at El Paso, Texas, or at New Orleans, Louisiana, give NTEU notice and, upon request, bargain on the impact and implementation of such decision.
________________________
(Agency)
Date: ___________ By: ________________________
Commissioner of Customs
Washington, D.C.
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Dallas Region, whose address is: 525 South Griffin Street, Suite 926, LB 107, Dallas, Texas 75202-1906, and whose telephone number is: (214) 767- 4996.
Chairman Wasserman, concurring.
I join in the conclusion that the right to determine internal security extends to the Agency's decision to use videotaping as an investigative technique. In addition to the points made above, I weigh as a factor the nature of the Agency's mission, which is law enforcement. As we noted in Federal Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas and American Federation of Government Employees, Local 3828, AFL-CIO, 55 FLRA 848, 856 (1999), although in a different context, special security concerns an agency would have, such as in a prison setting, should receive careful consideration. Such concerns are not dispositive, however, because they are a part of the "totality of the circumstances" which the Authority will weigh in unfair labor practice cases.
It is always critical that an agency establish the link between its action and internal security in order to bring the action within the scope of section 7106(a)(1). Whether it is videotaping or some other claimed security action, an agency must do more than simply designate it as a "security" matter. In this case, I find that the evidence of the use of the videotape as a legitimate security technique, combined with the law enforcement context, is sufficient for me to conclude that the use of the videotape is linked to the Agency's right to determine its internal security. I contrast this case to National Treasury Employees Union and U.S. Customs Service, Washington, D.C., 55 FLRA 1174 (1999) in which I dissented to finding that providing investigative videotapes to the employee who are interviewed a matter involving internal security. In that case, the proposal did not hamper the use of videotapes, and there was no evidence that the previous practice of giving employees a copy of the tape had an adverse effect on internal security.
File 1: Authority's Decision in 56 FLRA No.
56
File 2: ALJ's Decision
Footnote # 1 for 56 FLRA No. 56 - Authority's Decision
Chairman Wasserman's concurring opinion appears at the end of this decision.
Footnote # 2 for 56 FLRA No. 56 - Authority's Decision
On December 23, 1999, the Authority issued a decision in this case. See Department of the Treasury, 55 FLRA 1174 (Provision 9) (Member Wasserman dissenting in part), , petition for review filed, No. 00-1058 (D.C. Cir. Apri1 24, 2000).
Footnote # 3 for 56 FLRA No. 56 - Authority's Decision
Section 2423.40(a)(2) provides, in pertinent part, that exceptions shall consist of the following:
(2) Supporting arguments, which shall set forth, in order: all relevant facts with specific citations to the record; the issues to be addressed; and a separate argument for each issue, which shall include a discussion of applicable law.
As relevant here, there is no substantive difference between section 2424.40(a)(2) and the former section of the Authority's Regulations, section 2423.27 (1997). See Air Force Flight Test Center, Edwards Air Force Base, California, 55 FLRA 116, 118 n.6 (1999).
Footnote # 4 for 56 FLRA No. 56 - Authority's Decision
In view of this determination, we find it unnecessary to reach the Respondents' other contentions that the videotaping of employee investigative interviews by IA constitutes an internal security practice.