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32 FLRA No. 135

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

 

FRATERNAL ORDER OF POLICE
LODGE 1F (R.I.) FEDERAL
Union

and 

VETERANS ADMINISTRATION, VETERANS
ADMINISTRATION MEDICAL CENTER
PROVIDENCE, RHODE ISLAND
Agency

Case No. 0-NG-1510

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case

This case is before the Authority because of a negotiability petition filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). This case presents issues concerning the negotiability of seven proposals alleged to be nonnegotiable by the Agency during contract negotiations with the Union. The Union represents a bargaining unit of 15 police officers at the Agency's Providence, Rhode Island facility.

For the reasons discussed below, we dismiss the petition for review as to all seven of the proposals.

Proposal 1 relates to the use of seniority to assign scheduled overtime. The petition for review as to Proposal 1 is dismissed because the record does not contain sufficient evidence for us to make a negotiability determination.

Proposal 2, which requires the payment of a minimum of 4 hours of overtime for officers' scheduled court appearances on their regular days off, is inconsistent with 5 U.S.C. § 5542(b)(1) and, therefore, outside the duty to bargain under section 7117(a)(1) of the Statute.

Proposal 3, which precludes the Agency from changing an employee's tour of duty to accommodate court appearances unless the employee and the Agency agree to the change in advance, is also inconsistent with 5 U.S.C. § 6101(a)(3)(A) and 5 C.F.R. § 610.121(a)(2) and outside the duty to bargain under section 7117(a)(1).

Proposal 4 requires that temporary assignments to the position of Acting Chief of Security Service be made based on seniority. It also provides that when employees are temporarily promoted to the Acting Chief position, they shall be assigned to an administrative workweek and their tour shall be covered by overtime assignments. Proposal 4 is negotiable only at the election of the Agency because it concerns a position outside the bargaining unit. The first sentence of the proposal is also outside the duty to bargain under section 7106(a)(2)(A) because it restricts management's right to assign employees. The second part of the proposal is also outside the duty to bargain under section 7106(a)(2)(B) because it directly interferes with management's right to assign work by requiring the assignment of overtime work.

Proposal 5, which prohibits management from assigning probationary employees to the Acting Chief position, is also negotiable only at the election of the Agency. Like Proposal 4, it concerns the filling of a position outside the bargaining unit. Proposal 5 also directly interferes with management's right to assign employees under section 7106(a)(2)(B) by restricting management's discretion to determine the qualifications necessary to fill the position. Proposal 5 is, therefore, outside the duty to bargain.

Proposal 6 requires the Agency to: (1) maintain the practice of providing 2-way radios and other necessary equipment; and (2) provide a vehicle for the officers' use. Proposal 7 requires the Agency to maintain a minimum of two officers on each tour of duty. Both proposals are outside the duty to bargain because they directly interfere with management's right under section 7106(a)(1) to determine its internal security practices. Proposal 6 also violates management's right under section 7106(b)(1) to determine the technology, methods and means of performing its work. Proposal 7 also violates management's right under section 7106(b)(1) to determine the number of employees assigned to a tour of duty.

II. Proposal 1

ARTICLE VIII: OVERTIME

SECTION I: For the purpose of covering scheduled overtime hours, seniority as determined by Section I, Article VI, will be the basis for selection of such scheduled overtime hours.

A. Positions of the Parties

The Agency contends that the proposal violates management's right under section 7106(a)(2)(B) to assign work because it precludes management from making overtime assignments based on employees' qualifications. As to the Union's contention that the proposal reflects the Agency's existing practice of assigning overtime, the Agency argues that the question of whether there is an established practice is irrelevant to the determination of the negotiability of the proposal.

The Union did not file a Response to the Agency's Statement of Position. In its Petition for Review, the Union contends that the proposal does not infringe on management's right to assign work because its purpose is merely to express in more detail a current contract term which requires that scheduled overtime be distributed in a fair and equitable manner. The Union asserts that the Agency's concern about qualifications constitutes an inappropriate distinction among officers whose grade requirements and position descriptions are the same. Finally, the Union contends that the Agency has an established practice of distributing overtime in this manner.

B. Discussion

We conclude that the petition with respect to Proposal 1 must be dismissed because, based on the record before us, we cannot determine whether it conflicts with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Proposals prescribing the criteria governing the distribution of overtime assignments do not infringe on management's right to assign work if they do not interfere with management's determination of the qualifications necessary to perform the work. See, for example, National Federation of Federal Employees, Council of Veterans Administration Locals and Veterans Administration, 31 FLRA 360, 426 (1988) (Proposal 22, section 4), petition for review as to other matters filed sub nom. Veterans Administration v. FLRA, No. 88-1314 (D.C. Cir. Apr. 22, 1988) (proposal providing for the negotiation of the distribution of overtime assignments in local supplemental agreements held to be negotiable because it concerned only the procedure for scheduling overtime and did not interfere with management's right to determine the qualifications of those to whom it chose to assign work). Compare American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 30 FLRA 400, 404 (1988) (Proposal 4) (proposal which conditioned the assignment of overtime work on the availability of lower graded employees deprived management of the right to assign work based on employees' qualifications, thereby violating management's right to assign work).

Proposal 1 provides for "seniority as determined by Section I, Article VI," as the method of assigning scheduled overtime. The text of Section I, Article VI is not included in the record. Therefore, we cannot resolve whether "seniority as determined under Section I, Article VI," provides for a management determination as to the qualifications necessary to perform the overtime work. Accordingly, there is insufficient evidence in the record for us to determine whether Proposal 1 is consistent with management's rights, and the petition as to Proposal 1 must be dismissed. See National Federation of Federal Employees v. FLRA, 681 F.2d 886 (D.C. Cir. 1982), aff'g National Federation of Federal Employees Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981).

We reject the Union's contention that the existence of an established practice concerning the assignment of overtime work based on seniority renders the proposal negotiable. Proposals that are nonnegotiable under section 7106(a) do not become negotiable based on management actions. Veterans Administration Staff Nurses Council, Local 5032, WFNHP, AFT, AFL-CIO and Veterans Administration Medical Center, Wood, Wisconsin, 29 FLRA 849, 861 (1987) (Proposal 7), petition for review as to other matters filed sub nom. Veterans Administration Medical Center v. FLRA, No. 87-1740 (D.C. Cir. Dec. 2, 1987). See also Overseas Education Association v. FLRA, 827 F.2d 814, 819 (D.C. Cir. 1987) (an agency cannot make negotiable, by regulation or otherwise, matters which are barred by section 7106(a) of the Statute).

III. Proposal 2

ARTICLE VIII: OVERTIME

SECTION IIIA: Officers scheduled for Federal Court appearances on a regular day off shall be paid a minimum of four (4) hours overtime.

A. Positions of the Parties

The Agency contends that Proposal 2 is inconsistent with 5 U.S.C. § 5542, which permits the payment of overtime to employees only for the actual time work is performed. Therefore, the Agency argues that the proposal is outside the duty to bargain under section 7117(a)(1) of the Statute.

The Union contends that its proposal is justified in the context of the special circumstances inherent in law enforcement. The Union asserts that the proposal should be considered as an exception to the law which mandates a minimum of 2 hours' overtime in callback circumstances.

B. Discussion

We conclude that Proposal 2 is outside the duty to bargain under section 7117(a)(1) because it is inconsistent with 5 U.S.C. § 5542, which provides:

§ 5542. Overtime rates; computation

(a) For full-time, part-time and intermittent tours of duty, hours of work officially ordered or approved in excess of 40 hours in an administrative workweek, or . . . in excess of 8 hours in a day, performed by an employee are overtime work[.]

. . . . . . .

(b) For the purpose of this subchapter--

(1) unscheduled overtime work performed by an employee on a day when work was not scheduled for him, or for which he is required to return to his place of employment, is deemed at least 2 hours in duration{.}

Section 5542(b)(1) provides that when an employee is required to work unscheduled overtime, the overtime shall be deemed at least 2 hours in duration. The provision is an exception to the general rule that overtime payments are limited to the actual time work is performed. See, for example, American Federation of Government Employees, Local 2612, AFL-CIO and Department of the Air Force, Headquarters, 416th Combat Support Group (SAC), Griffiss Air Force Base, New York, 19 FLRA 1012-13 (1985) (Proposal 1) (proposal that employees who are held over be paid a minimum of 4 hours' overtime was found to be outside the duty to bargain because it was inconsistent with law).

Proposal 2 requires that the Agency provide a minimum of 4 hours of overtime for police officers who are called back on their day off for a court appearance regardless of the number of hours actually worked. By increasing from 2 hours to 4 hours the minimum number of hours an employee is deemed to have worked when required to perform unscheduled overtime, Proposal 2 conflicts with section 5542(b)(1). Therefore, Proposal 2 is inconsistent with law and outside the duty to bargain under section 7117(a)(1). See also International Association of Machinists and Aerospace Workers, Local 726 and Naval Air Rework Facility, North Island, San Diego, CA, 31 FLRA 158, 170-71 (1988) (Provision 7) (provision requiring agency in certain circumstances to guarantee 4 hours of pay to employee called back to work, regardless of whether or not the work was performed, held to be inconsistent with 5 C.F.R. § 532.503(c), a Government-wide regulation providing benefits to Wage Grade employees which are parallel to those provided to General Schedule employees under 5 U.S.C. § 5542(b)(1)).

The Union states in its petition for review that special consideration should be given to providing police officers with an exception to the 2-hour callback rule. Petition for Review at 3 of Proposal 2. The Authority, however, is empowered by section 7105(a)(2)(E) to determine only whether the proposal is inconsistent with law, not whether an exception to the law should be made.

IV. Proposal 3

ARTICLE VIII: OVERTIME

SECTION IIIA: Changes to the officer's regular workweek or tour of duty will not be made to accommodate court appearances unless mutually agreed upon by the employee and the employer, in advance.

A. Positions of the Parties

The Agency contends that Proposal 3 is inconsistent with 5 C.F.R. § 610.121 and, therefore, is outside the duty to bargain under section 7117(a)(1) of the Statute. The Agency also argues that the existence of an Agency practice regarding changes in an employee's workweek is irrelevant to the determination of the negotiability of the proposal.

The Union states that Proposal 3 does not infringe on management's rights to assign, direct, or take whatever actions may be necessary to carry out the Agency's mission during emergencies. In addition, the Union argues that the Agency has established a practice of not changing an employee's workweek or tour of duty without mutual agreement.

B. Discussion

Proposal 3 is inconsistent with a Government-wide regulation and is, therefore, outside the duty to bargain under section 7117(a)(1) of the Statute.

Proposal 3 does not permit the Agency to make a change in a tour of duty to accommodate court appearances unless the change is "mutually agreed upon by the employee and the employer, in advance." Under applicable law, 5 U.S.C. § 6101(a)(3)(A), and the corresponding Government-wide regulation, 5 C.F.R. § 610.121(a)(2), an agency may make changes in an employee's tour of duty as long as it provides a minimum of 7 days' notice. Also, an agency may make changes in work schedules within the required 7-day notice period where the agency would otherwise be handicapped in carrying out its mission or where costs would be substantially increased. See generally National Association of Government Employees, Local R7-23 and Department of the Air Force, Scott Air Force Base, Illinois, 23 FLRA 753, 754-57 (1986).

Proposal 3 would preclude management from changing an employee's work schedule unless the employee agreed, regardless of the amount of notice or the circumstances necessitating the change. We find, therefore, that Proposal 3 is inconsistent with 5 C.F.R. § 610.121, an applicable Government-wide regulation, and is outside the duty to bargain under section 7117(a)(1) of the Statute. See International Association of Machinists and Aerospace Workers, Local Lodge 2424 and Department of the Army, Aberdeen Proving Ground, Maryland, 24 FLRA 502 (1987) (proposal requiring 2 weeks' notice before changing an employee's tour of duty unless the employee agreed to the change was held to be inconsistent with 5 C.F.R. § 610.121, a Government-wide regulation, because it restricted management's right to make the change within the 7-day notice period).

As to the Union's argument that the proposal is negotiable because it reflects an established Agency practice, we note, as we did above at Proposal 1, that proposals which are nonnegotiable under section 7106(a) do not become negotiable based on management action.

V. Proposal 4

ARTICLE XIV: PROMOTION AND ASSIGNMENTS

PARAGRAPH 2: Temporary assignments to higher skill levels will be rotated among unit employees by seniority. Temporary promotions to the position of Acting Chief of Security Service will include movement by the assigned officer to the administrative workweek and his/her normal tour of duty shall be covered through scheduled overtime assignments.

A. Positions of the Parties

The Agency states that the proposal concerns positions, including the position of Acting Chief of Security Service, which are outside the bargaining unit. The Agency contends, therefore, that the portions of the proposal which pertain to filling higher skill level positions, including the position of Acting Chief, and to the work schedule of the Acting Chief position do not concern conditions of employment of bargaining unit employees. Consequently, the Agency maintains that Proposal 4 is negotiable only at the election of the Agency.

Alternatively, the Agency argues that even if the Authority interprets the proposal as applying only to unit positions, it is nonnegotiable because it violates management's right under section 7106(a)(2)(A) of the Statute to assign employees. The Agency asserts that the right includes the discretion to choose the employee who is best qualified for assignment. The Agency also contends that the part of the proposal which requires that the regular duties of the employee temporarily promoted to the Acting Chief position be reassigned to another employee violates management's right to assign work under section 7106(a)(2)(B). Finally, the Agency contends that the part of the proposal which requires that the tour of duty of an employee temporarily promoted to Acting Chief be covered by scheduled overtime assignments of another employee violates management's right under section 7106(b)(1) to determine the number of employees assigned to a work project or tour of duty and is negotiable only at the election of the Agency.

The Union contends that the proposal does not infringe on management's right under section 7106(a)(2)(A) to assign employees because it is intended to ensure the equitable distribution of temporary assignments to higher skill level positions, specifically, the position of Acting Chief. The Union also requests that the Authority rule on the Agency's practice of temporarily assigning GS-5 officers to the GS-8 Acting Chief position. The Union claims that under Office of Personnel Management regulations, the GS-5 officers would be unable to apply for the GS-8 position under competitive procedures. The Union argues that the intent of the second sentence is to reflect management's requirement that the Acting Chief work an administrative workweek and to ensure that the position normally occupied by the employee temporarily filling the Acting Chief position not be left vacant.

B. Discussion

We conclude that Proposal 4 is negotiable only at the election of the Agency because it concerns a position outside the bargaining unit.

Both sentences of the proposal concern the position of Acting Chief of Security Service, a position outside of the bargaining unit. Petition for Review at 3 of Proposal 4. The procedure which management must follow in filling supervisory positions is not a matter affecting conditions of employment of bargaining unit employees and, therefore, is negotiable only at the election of the agency. National Union of Hospital and Health Care Employees, AFL-CIO, District 1199 and Veterans Administration Medical Center, Dayton, Ohio, 28 FLRA 435, 456 (1987) (Proposal 12, Section 4), petition for review as to other matters filed sub nom. Veterans Administration Medical Center, Dayton, Ohio v. FLRA, No. 87-1521 (D.C. Cir. Sept. 28, 1987) (proposal concerning the announcement of supervisory positions held to be negotiable only at the election of the agency because the proposal applied to positions outside the bargaining unit).

While the proposal in this case concerns temporary assignments and temporary promotions to a supervisory position, the same principle applies. We find, therefore, that the proposal does not concern the conditions of employment of bargaining unit employees. Since the proposal is negotiable only at the election of the Agency and the Agency has elected not to bargain, Proposal 4 as a whole is outside the duty to bargain.

In addition, we find that the first sentence of Proposal 4 directly interferes with management's right to assign employees to positions under section 7106(a)(2)(A) because it requires management to assign employees based only on seniority. The right to assign an employee to a position includes the discretion to determine the personnel requirements or qualifications of the work of a position and the discretion to determine whether an employee meets the qualifications for the position. See, for example, American Federation of Government Employees, Local 2663 and Veterans Administration Medical Center, Kansas City, Missouri, 31 FLRA 988, 989 (1988). By requiring that reassignments to the Acting Chief position be rotated among unit employees by seniority, without regard to qualifications, Proposal 4 directly interferes with management's right to assign employees. See also Veterans Administration Medical Center, Leavenworth, Kansas, 30 FLRA 400 (1988) (Proposal 5) (proposal compelling agency to select volunteers for overtime work regardless of qualifications is outside the duty to bargain).

We also conclude that the portion of the second sentence of Proposal 4 requiring that the duties of the employee temporarily promoted to Acting Chief be covered through scheduled overtime assignments is nonnegotiable under section 7106(a)(2)(B) because it directly interferes with management's right to assign work. This portion of Proposal 4 requires management to assign the work of the employee assigned to be Acting Chief to other unit employees on overtime. Proposals which require management to reassign duties from one bargaining unit employee to another directly interfere with management's right to assign work and are outside the duty to bargain under section 7106(a)(2)(B). See National Federation of Federal Employees, Local 2052 and Department of the Interior, Bureau of Land Management, Boise District Office, 30 FLRA 797, 829 (1988) (Proposal 18) (proposal requiring a supervisor to reassign a bargaining unit employee's duties to other employees is nonnegotiable under section 7106(a)(2)(B) of the Statute). Consistent with Boise District Office, we find that the second sentence of Proposal 4, which would reassign duties from one employee to another, directly interferes with management's right to assign work under section 7106(a)(1)(B) and is outside the duty to bargain. Because Proposal 4 is nonnegotiable for the reasons set forth above, we find it unnecessary to decide whether the proposal also interferes with management's rights under section 7106(b)(1) of the Statute as alleged by the Agency.

VI. Proposal 5

ARTICLE XIV: PROMOTIONS AND ASSIGNMENTS

PARAGRAPH 3: Probationary employees will not be assigned temporary promotions to higher skills level.

A. Positions of the Parties

The Agency contends that the proposal concerns a supervisory position which is outside the bargaining unit. The Agency asserts that the proposal, therefore, does not pertain to the conditions of employment of bargaining unit employees and is negotiable only at the election of the Agency. The Agency also argues that if the Authority interprets the proposal as applying to bargaining unit employees, Proposal 5 directly interferes with management's right to assign employees under section 7106(a)(2)(A).

The Union contends that this proposal does not infringe on management's right to assign employees under section 7106(a)(2)(A). The Union argues that a probationary employee's knowledge of personnel policies, station rules and regulations, and the responsibilities of the Acting Chief may not be sufficient to carry out the operational requirements of the position.

B. Discussion

Proposal 5 is intended to preclude management from assigning a probationary employee as Acting Chief of Security Service, a position which is a supervisory position and, therefore, outside the bargaining unit. Petition for Review at 3 of Proposal 5. As noted above concerning Proposal 4, the procedures concerning the filling of a position outside of the bargaining unit are negotiable only at the election of the Agency. See Veterans Administration Medical Center, Dayton, Ohio, 28 FLRA 435 (1987). Like Proposal 4, therefore, Proposal 5 is negotiable only at the election of the Agency because it concerns the procedures related to filling a position outside the bargaining unit. Since the Agency has elected not to negotiate, Proposal 5 is outside the duty to bargain.

In addition, like Proposal 4 above, Proposal 5 restricts management's right under section 7106(a)(2)(A) to assign employees by precluding management from assigning a probationary employee to the Acting Chief position. The right to assign an employee to a position includes the discretion to determine which employee will be assigned. American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 613 (1980), enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA 455 U.S. 945 (1982). Proposal 5 restricts management's right to assign an employee from a particular group of employees (probationary employees) to the position of Acting Chief. See, for example, Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 748-50 (1988) (Proposal 9), petition for review filed sub nom. Overseas Education Association, Inc. v. FLRA, No. 87-1576 (D.C. Cir. Oct. 14, 1987) (proposal which required the agency to make an effort to assign qualified substitute teachers directly interfered with management's right to assign by compelling the assignment of certain teachers). Therefore, Proposal 5 directly interferes with management's right to assign employees and is outside the duty to bargain on that basis also.

VII. Proposals 6 and 7

ARTICLE XVIII: SAFETY, HEALTH, AND ENVIRONMENT

[Proposal 6]

SECTION IA: The employer agrees to maintain and service two-way radio systems, and other necessary equipment. The employer will provide and maintain in good working order a police vehicle for the sole use by Security Service, and to provide a suitable back-up vehicle in the event that the police vehicle is out of service.

[Proposal 7]

SECTION I

PARAGRAPH 2: The employer will maintain a minimum of two (2) police officers on dutyduring each tour of duty.

A. Positions of the Parties

The Agency contends that both Proposal 6 and Proposal 7 are negotiable only at the election of the Agency under section 7106(b)(1) of the Statute. The Agency argues that Proposal 6 interferes with management's right to determine the technology, methods, and means of performing its "mission to maintain law and order on VA property" by requiring the Agency to provide and maintain cars, two-way radios and other necessary equipment. Statement of Position at 18. The Agency argues that Proposal 7 interferes with management's right under section 7106(b)(1) to determine the number of employees assigned to a tour of duty by requiring that at least two employees be assigned to each tour.

The Agency also contends that Proposal 6 interferes with management's right under section 7106(a)(1) to determine its internal security practices because the equipment used in law enforcement is inseparable "from the design for security which it is the mission of the VA police to accomplish." Statement of Position at 22. As to Proposal 7, the Agency contends that it interferes with management's right to determine its internal security practices because its ability to "enforce law and order" is directly related to its ability to assign its personnel to tours of duty as it deems necessary to avoid creating potential security risks. Statement of Position at 26.

The Agency also argues that the question of whether the proposal reflects an existing Agency practice is irrelevant to the determination of the negotiability of either proposal. Finally, the Agency views as "misleading" the Union's claim that it has negotiated an agreement to provide cars with another bargaining unit, and that, in any event, the Agency's bargaining history with another union has no relevance to this negotiability appeal. Statement of Position at 21.

Concerning Proposal 6, the Union claims that the mission of the Security Service cannot be accomplished without the availability of a suitable vehicle on a 24-hour basis. The Union argues that the Agency's claim of nonnegotiability is groundless because a proposal with similar wording was negotiated by another organizational unit of the Veterans Administration and another local of the Union.

As to Proposal 7, the Union concedes that it would normally be negotiable only at the election of the Agency under section 7106(b)(1) of the Statute as claimed by the Agency in its allegation of nonnegotiability. However, the Union argues that the special nature of police work requires that at least two officers be on duty at all times for the effective accomplishment of the Agency's mission. The Union also contends that the proposal is necessary to the security of the police officers themselves. Finally, the Union contends that the Agency has an established practice with respect to the matters set forth in both proposals.

B. Discussion

We conclude that Proposals 6 and 7 directly interfere with management's right under section 7106(a)(1) to determine its internal security practices. We also conclude that Proposal 6 interferes with management's right under section 7106(b)(1) to determine the technology, methods, and means of performing its work, and that Proposal 7 interferes with management's right under section 7106(b)(1) to determine the number of employees assigned to a tour of duty.

The term "internal security practices" includes those policies and actions which are part of the Agency's plan to secure or safeguard its personnel, physical property, and operations against internal or external risks. See, for example, American Federation of Government Employees, Local 1482 and Marine Corps Logistics Base, Barstow, California, 31 FLRA 916, 918 (1988). The bargaining unit consists of police in the Security Service whose mission is to protect patients, visitors, and employees; to protect Agency property; and to maintain law and order on property under the charge and control of the Agency. Statement of Position at 18. The Agency states that in order to carry out its security function it must be able to determine: (1) the mode of communication with its security officers, the technology used by those officers, and their mode of transportation; and (2) the number of officers assigned to a tour of duty. Statement of Position at 22 and 26.

The determination of the practices and policies which are necessary to the accomplishment of the security function of an agency, including the equipment to be used and the assignment of personnel, is directly related to the determination of an agency's internal security practices. See, for example, Federal Union of Scientists and Engineers, National Association of Government Employees and Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 26 FLRA 404, 405 (1987) (proposal precluding the agency's use of an electronic security system directly interfered with the agency's right to determine its internal security practices). The judgment as to the degree or type of staffing, or the type of equipment to be used by security personnel to maintain the security of facility is committed to management under section 7106(a)(1). See also American Federation of Government Employees, AFL-CIO, Local 683 and Department of Justice, Federal Correctional Institution, Sandstone, Minnesota, 30 FLRA 497, 499-500 (1988) (proposal precluding the agency's decision to change the shift rotation of cook foreman, which was based on the agency's judgment that security would be enhanced by the change, directly interfered with the agency's right to determine its internal security practices).

Where a link has been established between an agency's action--in this case, the use of particular equipment and particular staffing patterns--and the agency's expressed security concerns, we will not review the merits of those actions. See, for example, Marine Corps Logistics Base, Barstow, California, 31 FLRA at 918. Therefore, in agreement with the Agency, we find that the determination of the mode of communication and transportation as well as the staffing used to accomplish its security function constitutes the Agency's determination of its internal security practices within the meaning of section 7106(a)(1) of the Statute. Because Proposals 6 and 7 limit management's determinations in those areas, we conclude that the proposals directly interfere with management's right to determine its internal security practices.

We also find that Proposal 6 interferes with management's right under section 7106(b)(1) to determine the technology, methods, and means of performing its work of safeguarding Agency property. Proposals requiring management to provide specific equipment to employees for their use in performing work are nonnegotiable under section 7106(b)(1) when the equipment concerns the technology of performing the agency's work. See, for example, National Treasury Employees Union, Chapter 229 and Department of Health and Human Services, Headquarters, 22 FLRA 698 (1986) (proposal requiring agency to provide adequate access to telephones concerns the technology of performing work); National Federation of Federal Employees, Council of Consolidated Social Security Administration Locals and Social Security Administration, 13 FLRA 422 (1983) (proposal requiring agency to provide calculators concerns the technology of performing work). Proposal 6 requires the Agency to provide radios--a particular type of communications technology--for use in police work. We find that Proposal 6 directly interferes with management's right to determine the technology of performing its law enforcement mission. See also American Federation of Government Employees, AFL-CIO, National Council of Social Security Field Office Locals and Department of Health and Human Services, Social Security Administration, 24 FLRA 842, 846-48 (1986).

Proposals requiring an agency to provide vehicles for use by employees in performing work are nonnegotiable under section 7106(b)(1) because they concern the means of performing agency work. See, for example, American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870, 888 (1986) (Proposal 10, giving employees the option of having an employer-provided automobile for transportation to and from work assignments concerned the means used to accomplish the agency's work).

Consistent with the cases noted above, we conclude that Proposal 6 interferes with management's right to determine both the technology and means of performing the Agency's work. Since the Agency has not elected to bargain over these matters, Proposal 6 is outside the duty to bargain on this basis also.

Proposals which determine the number of employees who are assigned to a tour of duty directly interfere with management's right to determine the number of employees assigned to a work project or tour of duty under section 7106(b)(1). See 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981) (proposal precluding the assignment of a single employee to a work unit was nonnegotiable because it interfered with management's right under section 7106(b)(1) to determine the number of employees assigned to a tour of duty). See also Bureau of Land Management, Boise District Office, 30 FLRA at 809-10 (Proposal 6, Section 4(c)). As the Union concedes (Petition for Review at 3 of Proposal 7), Proposal 7 would interfere with the Agency's right to determine the number of employees assigned to a tour of duty by requiring at least two officers on each tour. The proposal is, therefore, a matter over which the Agency may elect to bargain under section 7106(b)(1). Since the Agency has not elected to bargain, the proposal is outside the duty to bargain.

The Union's contentions concerning the special nature of police work do not provide a basis for distinguishing the proposals in this case from similar proposals which were found to be nonnegotiable in other cases. Further, the Union's claims that a similar proposal was negotiated by the Agency with another bargaining unit and that the Agency has an established practice as to the matters contained in the proposals have no relevance to the question of negotiability. As noted above, proposals that are nonnegotiable under section 7106(a) of the Statute do not become negotiable based on management action.

VIII. Order

The petition for review as to Proposals 1-7 is dismissed.

Issued, Washington, D.C.,

_____________________________
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

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FOOTNOTES:
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