57 FLRA No. 189

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of six proposals. The Agency filed a statement of position. The Union filed a response to the Agency's statement of position.

      For the reasons that follow, we find that the proposals are outside the duty to bargain and dismiss the petition for review.

II.      Proposals 1-6  [n1] 

Proposal 1

The Agency will provide adequate shelter (guard shack) 10ft X 10ft inside dimensions.

Proposal 2

The Agency will provide an window AC/Heat unit 110 volts with a minimum of 6000 BTU.

Proposal 3

The Agency will provide a suitable desk and chair for staff to make log entries during their tour of duty.

Proposal 4

The Agency will provide a compact refrigerator to allow staff to store drinks and fruits during their hours of work.

Proposal 5

The Agency will provide a storage closet for inclement weather gear in the shelter.

Proposal 6

The Agency will allow for the outside perimeter to relieve themselves and have access to use the toilet facility located in the rear gate.

III.     Positions of the Parties

A.     Agency

      The Agency contends that the proposals conflict with its right to determine its internal security practices because they undermine its policy of constant oversight and surveillance on the perimeter of the facility. See Statement of Position (SOP) at 9. The Agency notes that the exercise of its right to determine its internal security practices includes the right 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. The Agency asserts that, as part of its security plan, it assigns guards to patrol the perimeter of the facility. In this regard, the Agency states that "the primary purpose of the outside perimeter patrol is constant, vigilant oversight to secure the safety of the institution, its employees, the inmates, and the public at large; distractions from that oversight are specifically discouraged." Id. at 6 (citations omitted).

      The Agency adds that it has established an outside perimeter shelter "for the limited purpose of allowing officers to note pertinent information and unusual incidents from their patrols in the log book, under cover, without having to go back inside the institution to do so." Id. The Agency argues that the proposals will "unacceptably increase the risk" that the guards on perimeter patrol will be distracted and diverted from "perimeter oversight." Id. at 8.

      Further, the Agency contends the Union's claim that the proposals are appropriate arrangements under § 7106(b)(3) constitutes a bare assertion that the [ v57 p902 ] Authority should not consider. In support, the Agency cites NTEU, 53 FLRA 539, 541-42 (1997). According to the Agency, the Union has failed to address how the proposals are sufficiently tailored to a specific, identified adverse effect on unit employees. The Agency also asserts that the Union fails to explain "how the expected benefits of the proposals outweigh the broad, significant constraints [it] place[s] on the Agency's ability to determine its own internal security practices and to maintain constant perimeter oversight." SOP at 11.

      The Agency also argues that the proposals excessively interfere with its right to determine its internal security practices because they would allow "employees to leave their patrols without prior approval or instructions regardless of the underlying circumstances or security consequences." Id. at 12.

B.     Union

      In its petition for review, the Union explained the meaning of each proposal. The Union also stated, with respect to its legal arguments concerning the negotiability of each proposal, that it would "[w]ait and explain in response to the Agency's statement of position." Id. at 5-9. Subsequently, in its response using the Authority's standard form, and answering question 7 which asks whether the proposals constituted appropriate arrangements under § 7106(b)(3) of the Statute, the Union checked "Answered in Petition for Review." Response at 5.

IV.     Meaning of the Proposals

      Proposals 1-5 require the Agency to provide an outside shelter for guards who patrol the perimeter of the facility and to equip the shelter with a heating and air conditioning unit, desk and chair, compact refrigerator and a storage closet. Proposal 6 would allow guards on outside perimeter patrol to take breaks to use the toilet facility located at the rear gate.

V.     Preliminary Matter

      In its petition for review, the Union requested that the Authority hold a hearing in this case. Under § 2424.31 of the Authority's Regulations, a hearing is appropriate "[w]hen necessary to resolve disputed issues of material fact."

      At the post-petition conference, the Union stated that the only "factual" issue it believes merits hearing is whether Article 29, Section d in the parties' master collective bargaining agreement requires the Agency to negotiate concerning these proposals. Post-Petition Conference Record at 1. Article 29, Section d provides that "[s]helter for outside posts for use of employees during inclement weather will be negotiated locally." Response at 6. The Agency agreed that Article 29, Section d requires the parties to negotiate locally regarding shelter for outside posts, but maintains that these six proposals are nonnegotiable because they affect management's right to determine internal security. See Post-Petition Conference Record at 1-2.

      We find that the Union's claim presents no disputed issues of material fact. Consequently, we conclude that a hearing is not necessary to resolve the negotiability of the proposals and we deny the Union's request for a hearing.

      We also reject the Union's claim that Article 29, Section d of the master collective bargaining agreement supports the negotiability of the proposals. See Response at 6. As the Agency asserts, its general agreement to bargain at the local level over the issue of the shelter does not limit the Agency in making the claim that a particular proposal is not negotiable. Cf. International Federation of Professional and Technical Engineers, Local 777, 49 FLRA 1517, 1518 (1994) (identifying a potential area of collective bargaining does not frame a proposal over which the Authority can determine whether a duty to bargain exists).

VI.     Analysis and Conclusions

      Under § 7106(a)(1) of the Statute, management's right to determine its internal security practices includes the right to determine the policies and practices that are necessary to safeguard its operations, personnel, and physical property against internal and external risks. See AFGE, Local 1920, 47 FLRA 340, 348 (1993). Where an agency demonstrates a link or a reasonable connection between its goal of safeguarding its personnel, property, or operations and its practice or decision designed to implement that goal, a proposal that directly interferes with or negates the agency's practice or decision affects the agency's right under § 7106(a)(1) of the Statute. See id. The Authority will not examine the extent to which the practices adopted by management to achieve its security objectives actually facilitate the accomplishment of those objectives. See id. at 349.

      The Agency contends that it safeguards its personnel, physical property or operations against internal and external risks by assigning guards to patrol the perimeter of the facility. In this regard, the Agency states that "the primary purpose of the outside perimeter patrol is constant, vigilant oversight to secure the safety of the institution, its employees, the inmates, and the public at large[.]" SOP at 6 (citations omitted). We find that the Agency has established a reasonable link between the patrol of its perimeter by guards and its goal of safeguarding its personnel, physical property, and operations against internal and external risks.

      The Agency further asserts that the outside perimeter shelter is designed to allow guards to perform aspects of their work -- making entries in their log book -- while still being able to remain outdoors. The Agency argues, and we agree, that equipping the outside shelter with the items identified in the proposals and permitting the guards to avail themselves of these items or other, existing facilities, will increase the risk that the guards who are on perimeter patrol will be distracted from their duties. See, e.g., International Brotherhood of Police Officers, 46 FLRA 333, 337 (1992). Consequently, we find that the proposals affect management's right to determine its internal security practices.

      In the absence of any claim that the proposals are negotiable under § 7106(b), we will dismiss the petition for review. [n2] 

VII.     Order

      The petition for review is dismissed.

   The parties agreed that the Authority should consider the negotiability of all six proposals together. See Post-Petition Conference Record at 1.

   The Union does not explicitly argue that the proposals constitute appropriate arrangements. As noted previously, the Union's sole reference to § 7106(b)(3) was in its form response to the statement of position, on which it checked "Answered in Petition for Review." The petition for review contained no claim that the proposals are appropriate arrangements. Consequently, whether viewed as no assertion or a bare assertion, there is no § 7106(b)(3) claim properly before us.