[ v21 p841 ]
21:0841(102)NG
The decision of the Authority follows:
21 FLRA No. 102
NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 153
Union
and
DEPARTMENT OF THE TREASURY,
U.S. CUSTOMS SERVICE,
REGION II
Agency
Case No. 0-NG-620
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This petition for review comes before the Authority pursuant to
section 7105(a)(2)(E) of the Federal Service Labor-Management Relations
Statute (the Statute) and presents issues concerning the negotiability
of three Union proposals.
The Union offered these proposals in impact bargaining concerning the
Agency's decision to establish a telephone "hotline." The purpose of the
hotline was to serve as "a vehicle for the public to report
(anonymously, if they so desired) criminal conduct, primarily the
acceptance of bribes by certain employees." In addition, the Agency
planned to send a short press release, providing the telephone number of
the hotline, to newspapers that printed stories about criminal conduct
by Customs Service employees.
II. Proposals
Union Proposal 1
(4) Information received via the hotline, involving
non-criminal matters, shall not be investigated or incorporated in
any record or system of records within the control of the U.S.
Customs Service.
Union Proposal 2
(5) A press release for the hotline will include the following
statement: "Information received via this press release involving
non-criminal matters shall not be investigated or incorporated in
any record or system of records within the control of the U.S.
Customs Service."
Union Proposal 3
(6) The Union shall receive a summarization of each of the
allegations obtained through the Customs hotline involving
non-criminal matters.
III. Position of the Parties
A. Union Proposals 1 and 2
The Agency argues that Union Proposals 1 and 2 will limit
management's use of information from the hotline to the investigation of
allegations of criminal activity. Thus, these proposals, according to
the Agency, will violate its right under section 7106(a)(1) of the
Statue to determine its internal security practices. Furthermore, the
Agency contends, the proposals are contrary to management's right to
discipline under section 7106(a)(2)(A) as they will preclude
investigations into allegations of non-criminal activity to determine
whether employees should be disciplined or removed.
The Union contends that its proposals will not prevent the
achievement of the Agency's stated objective of gathering information
involving criminal activities by Customs Service employees. In
addition, the Union asserts that information received from the hotline
concerning non-criminal matters will have an adverse affect on
bargaining unit employees and that its proposals constitute "appropriate
arguments" within the meaning of section 7106(b)(3) of the Statute.
B. Union Proposal 3
Regarding Union Proposal 3, which is discussed separately here as the
parties treated it as a distinct issue, the Agency makes three
arguments. First, the Agency contends that it is under no duty to
bargain on the proposal because the dissemination of information
concerning complaints about or allegations against employees was
negotiated with NTEU and is covered by Article 3, Section 13 of the
National Agreement. Second, the Agency asserts that the compilation and
disposition of the information the Union seeks is an integral part of
its internal security process and conflicts with the broad mandate
granted to agencies in section 7106(a)(1) of the Statute to determine
their internal security practices. Third, the Agency argues that Union
Proposal 3 may violate the Privacy Act.
In response to the Agency's contentions, the Union urges that
proposal 3 is limited to the Union's receipt of a summary of allegations
obtained through the hotline whereas the language in the National
Agreement requires management to notify employees of written complaints
it receives about employees. Also, the Union contends that the hotline
is unique and was not anticipated or discussed at the national
negotiations. With regard to internal security, the Union asserts that
its proposal will not interfere with Agency practices as its purpose is
simply to ensure that the only allegations investigated are those of a
criminal nature. Finally, the Union states that since the Agency will
prepare the summary, it will control what is disclosed. In response to
the allegations that Union Proposal 3 may violate the Privacy Act, the
Union specifically notes that the proposal does not require the Customs
Service to divulge the names of employees who are the subject of
complaints.
IV. Analysis
A. Union Proposals 1 and 2
The Authority has held that where an agency alleges a union's
proposal of an appropriate arrangement is nonnegotiable because it
conflicts with management rights described in section 7106(a) or (b)(1),
the Authority will consider whether such an arrangement is appropriate
for negotiation within the meaning of section 7106(b)(3) or, whether it
is inappropriate because it excessively interferes with the exercise of
management's rights. National Association of Government Employees, Local
14-87 and Kansas Army National Guard, 21 FLRA NO. 4 (1986).
As relevant in this case, the Authority has previously held that an
agency's right to determine its internal security practices under
7106(a)(1) of the Statute includes policies and actions which are part
of the agency's plan to secure or safeguard its physical property
against internal or external risks, to prevent improper or unauthorized
disclosure of information or to prevent the disruption of the agency's
activities or operations. See American Federation of Government
Employees, AFL-CIO, Local 32 and Office of Personnel Management,
Washington, D.C., 14 FLRA 6 (1984) (Union Proposal 2), reversed as to
other matters sub nom. FLRA v. OPM, 778 F.2d 844 (D.C. Cir. 1985).
The record in this case indicates that the Agency has a particular
need to maintain an honest and reliable workforce. That is, the Customs
Service is responsible for the enforcement of customs laws and other
related laws against the smuggling of contraband; for the assessment,
collection and protection of revenue by levying import duties and taxes;
and for the control of carriers, persons and articles entering or
departing the United States. The actual establishment of the hotline
for the purpose of reporting criminal conduct is not challenged by the
Union. The Authority finds such a hotline constitutes a part of the
Agency's internal security plan to maintain the integrity of its
operations.
Union Proposals 1 and 2, however, would substantially limit the
usefulness of this hotline, by restricting management to the
investigation of only criminal allegations from the hotline. To
illustrate, pursuit of non-criminal allegations which might lead to
revelations of criminal activities by employees is precluded. Moreover,
the hotline may not be used as an investigative tool to gather
information on employee misconduct that does not involve allegations of
criminal activity. Union Proposals 1 and 2 would prevent management
from employing every possible means, including the utilization of
investigations of non-criminal conduct, to guard against any dishonest
or prohibited conduct, whether criminal or not among its employees.
Such a limitation is inconsistent with management's right to determine
its internal security practices under section 7106(a)(1) of the Statute.
See National Treasury Employees Union, Chapter 21 and Department of the
Treasury, Bureau of Engraving and Printing, 18 FLRA NO. 54 (1985) (the
Authority found a proposal nonnegotiable which required that searches be
conducted only if authorized by warrant and/or incident to arrest
because it would defeat the agency's security plan).
In addition, although the hotline was ostensible established to
enable the Agency to receive information about criminal activity, it is
clear that if non-criminal information received on the hotline is
investigated, employees may be subject to disciplinary and removal
actions. Under the Union's proposals, however, management is
specifically prevented from utilizing information acquired through the
hotline to initiate investigations into non-criminal matters.
Therefore, in these circumstances the Agency is effectively prevented
from taking action to discipline or remove employees for improper
conduct. See National Federation of Federal Employees, Local 15 and
U.S. Army Armament Munitions and Chemical Command, Rock Island Arsenal,
Illinois, 19 FLRA NO. 6 (1985) (Union Proposal 2) (where a proposal
which provided criteria for management's use in determining whether to
authorize employee absences was found nonnegotiable as it would prevent
the agency from taking disciplinary action against employees on the
basis of those absences). Moreover, the proposals' restrictions on the
use of discipline also have the effect of preventing management from
using discipline as one method to maintain an honest and reliable
workforce, that is, to determine its internal security practices under
section 7106(a)(1). Union Proposals 1 and 2 are therefore inconsistent
with management's rights to determine its internal security practices
under section 7106(a)(1) and to take disciplinary actions against
employees under section 7106(a)(2)(A).
We turn now to the question of whether the Union's proposals
constitute approporate arrangements within the meaning of section
7106(b)(3) of the Statute. Although the Union does not specifically
address the adverse impact from management's exercise of its reserved
rights under section 7106(a), it is obvious that employees would be
subject to disciplinary and adverse actions based on non-criminal
information derived from the hotline. The Union's proposed amelioration
of this adverse effect would be to totally shield employees from
investigation of non-criminal information received through the hotline
and any resulting disciplinary action based on such information.
While employees may arguably benefit from a prohibition on
investigation of non-criminal matters, on balance, it is outweighed by
the negative impact on management's ability to enhance the integrity of
Agency operations by investigating improper conduct, criminal or
non-criminal, and taking appropriate disciplinary action. It is clearly
not in the interest of efficient and effective Government operations to
preclude management from utilizing all the information available through
the hotline.
Finally, this analysis is not changed by the Union's suggestion,
contained in its Reply Brief, that the Agency could designate a separate
hotline or another Agency telephone line to receive reports of
non-criminal conduct. In the first place, a separate hotline is not a
part of the proposals at issue which expressly preclude investigation or
the taking of appropriate disciplinary action based on allegations of
non-criminal conduct received via the hotline. But, even assuming that
this suggestion is an attempt to ameliorate the adverse effects of
management's exercise of its rights under 7106(a), it would require that
the Agency inform a caller who was reporting employee conduct via the
"criminal" hotline that it was necessary to call on another line. The
resulting inconvenience to the caller creates the risk that the caller
will abandon the attempt to provide the Agency information about
employee conduct. Thus, whether the Union's proposals to limit the
investigation to reports of criminal matters or the alternative hotlines
are considered, the interference with management's rights to determine
its internal security practices and take disciplinary and adverse
actions is excessive.
B. Union Proposal 3
1. Obligation to Bargain
Contrary to the Agency's claim, there does not appear to be a
conflict between Article 3, Section 13 of the National Agreement and
Union Proposal 3. That is, a review of the language of Article 3,
Section 13 of the National Agreement reveals that the provision requires
that an employee be notified as soon as practicable of a written
complaint received by management. This provision is clearly different
from Union Proposal 3 which would only require that the Union receive a
summary of allegations that management obtains through the hotline
without identification of the employees concerned. Compare American
Federation of Government Employees, Council 147 and Social Security
Administration, 17 FLRA 908 (1985) where the Authority determined that
the language of a national agreement precluded negotiation of local
proposals.
To the extent there are factual issues in dispute between the parties
as to the intended application of Article 3, Section 13 in the
circumstances of this case, such issues should be resolved in other
appropriate proceedings. 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).
2. ManagementS Right to Determine Its Internal Security
Practices
Under Union Proposal 3 the Agency retains the discretion to determine
the timing of the release and the nature of the information that will be
disclosed as well as the right to take any action necessary to protect
confidential information or sources. Because the Agency has not
established that Union Proposal 3 interferes with its right to conduct
its investigative functions, which is part of its internal security
practices, the proposal is within the duty to bargain. Compare National
Treasury Employees Union and the Department of the Treasury, U.S.
Customs Service, 9 FLRA 983, 987 (1982) (provision requiring employees
to be notified as soon as practicable of written non-criminal complaints
concerning that employee found within the duty to bargain) with National
Federation of Federal Employees, Local 1300 and General Services
Administration, 18 FLRA NO. 97 (1985), petition for review filed, No.
85-1541 (D.C. Cir. Aug. 27, 1985) (proposal prescribing conditions for
regular progress reports on on-going investigations concerning employees
held nonnegotiable).
3. Inconsistent With the Privacy Act
Although the Agency contends that Union Proposal 3 may violate the
Privacy Act, it has failed to point out any part of the proposal which
is inconsistent with that statute. It is noted that the plain language
of the proposal requires "a summarization of each of the allegations"
obtained through the hotline rather than disclosure of the identity of
employees involved. Also, as the Union states, the Agency will prepare
the summaries and is therefore able to control the content. In these
circumstances, the Authority is unable to conclude that there is a
violation of the Privacy Act.
V. Conclusion
Based on the foregoing analysis, the Authority finds that Union
Proposals 1 and 2, which would limit the Agency to the investigation of
criminal allegations received on the telephone hotline, would
excessively interfere with management's right under section 7106(a)(1)
to determine its internal security practices and with its right under
Section 7106(a)(2)(B) to discipline and remove employees. Regarding
Union Proposal 3, the Authority finds that the Agency has failed to
substantiate its contentions that it has no duty to bargain on the
proposal, that the proposal violates the Privacy Act or that it
interferes with the Agency's right to determine its internal security
practices. Thus, the Authority finds that Union Proposal 3, which would
require that the Agency furnish the Union with a summary of non-criminal
allegations received over the hotline, is within the duty to bargain.
/*/
VI. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review, insofar
as it relates to Union Proposals 1 and 2, be, and it hereby is,
dismissed. IT IS FURTHER ORDERED, that the Agency shall upon request,
or as otherwise agreed to by the parties, bargain concerning Union
Proposal 3.
Issued, Washington, D.C., May 15, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) In finding this proposal within the duty to bargain the Authority
makes no judgment as to its merits.