American Federation of Government Employees, Council of Prison Locals, Local 919 and U.S. Department of Justice, Federal Bureau of Prisons, Leavenworth, Kansas (Authority decision, October 31, 1991)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving a negotiability appeal. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

A prison union sought contract rules requiring an employee or representative to witness searches of the employee's property and requiring necessary precautions when staff or their families faced a serious physical threat. The Bureau of Prisons disapproved both provisions. The Authority found that each would limit management's discretion over internal security practices. It also found the record too thin to establish that either was an appropriate arrangement for employees. It dismissed the union's petition as to both provisions.

Decision snapshot

• Authority: Internal security right under 5 U.S.C. § 7106(a)(1); appropriate arrangements under § 7106(b)(3).
• Outcome: Petition dismissed; both security related provisions held nonnegotiable.
• Key point: A proposal that limits prison security discretion needs a sufficient record to show why it qualifies as an appropriate employee arrangement.

Full text (FLRA public release)

[ v42 p1295 ]

42:1295(89)NG

The decision of the Authority follows:

42 FLRA No. 89

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL OF PRISON LOCALS

LOCAL 919

(Union)

and

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

LEAVENWORTH, KANSAS

(Agency)

0-NG-1851

DECISION AND ORDER ON NEGOTIABILITY ISSUES

October 31, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability
appeal filed by the Union under section 7105(a)(2)(E) of the
Federal Service Labor-Management Relations Statute (the
Statute). This case concerns the negotiability of two
provisions of a negotiated agreement that were disapproved by
the Agency head under section 7114(c) of the Statute.

For the reasons that follow, we conclude that Provision 1,
which concerns searches of employees' personal property, is
nonnegotiable because it directly interferes with management's
right under section 7106(a)(1) to determine its internal
security practices. Provision 2, which concerns precautions to
be taken to avoid physical harm to employees and their
families, is nonnegotiable because it directly interferes with
management's right to determine its internal security
practices.

II. Provision 1

Article 6. Section E. Recognizing the Employer's
legal rights to search the personal property of
any employee when such property is on the grounds
of the Federal Reservation, such search shall be
conducted in accordance with current laws and
regulations. Such search will be witnessed by
the employee owner of searched property and or
that employee's representative of his/her choice.
[Only the underlined portion of this provision is
in dispute].

A. Positions of the Parties

1. The Agency

The Agency cites three reasons for its argument
that this provision is nonnegotiable. The Agency
contends that the provision: (1) interferes with
management's rights under section 7106(a) of the
Statute to determine its internal security practices
and to discipline employees; (2) is inconsistent with
a Government-wide regulation; and (3) contravenes 5
U.S.C. Appendix 3.

As to the first claim, the Agency contends that
unannounced searches of employees' personal property
where an internal security concern is present come
within the ambit of management's right to determine
its internal security practices. In this regard, the
Agency asserts that both the courts and the Authority
have generally recognized that the internal security
concerns of correctional facilities are particularly
serious in nature. The Agency argues that,
accordingly, conclusions reached with respect to
searches of employees' personal property in other
contexts do not necessarily apply in the context of
correctional facilities.

The Agency argues that this provision might
result in the delay of a search, which could be
critical in terms of compromising the Agency's ability
to ensure the integrity and security of its
operations. As an example, the Agency cites its need
to ascertain immediately whether a parcel that is left
where inmates have access to it contains a weapon.
Additionally, the Agency contends that by requiring it
to notify an employee of its intention to search his
or her property, the provision, in some instances,
would prevent it from determining whether the property
contains contraband and then "staking out" the
location in order to "catch the employee in the act
of dealing with inmates and at the same time identify
the employee's unknown confederates when they come to
pick up the contraband." Agency statement of position
at 10-11. In support of this latter point the Agency
cites the Authority's decision in Department of the
Treasury, Internal Revenue Service, Jacksonville
District and Department of the Treasury, Internal
Revenue Service, Southeast Regional Office of
Inspection, 23 FLRA 876 (1986) (IRS, Jacksonville
District), in which the Authority held that preventing
an agency from engaging in unannounced surveillance of
allegedly dishonest employees would unduly interfere
with management's right under section 7106(a)(1) to
determine its internal security practices.

Thus, the Agency contends that to the extent that
this provision would preclude the Bureau of Prisons
from conducting administrative searches of personal
property brought into the facility without first
notifying the employee owner, it interferes with
management's right to determine its internal security
practices. Alternatively, the Agency contends,
without further explanation, that the provision
interferes with management's right to discipline
employees.

Second, the Agency contends that this provision
is inconsistent with a Government-wide regulation. In
this regard, the Agency contends that 18 U.S.C. § 4001(b)(1) authorizes the promulgation of rules for
the control and management of Federal correctional
institutions. The Agency states that among the rules
promulgated under this authority, which has been
delegated to the Bureau of Prisons, is Correctional
Services Program Statement No. 5510.3, entitled
"Searching/Detaining Non-Inmates." The Agency
describes the intent of this regulation as providing
for immediate searches of items of personal property
regardless of whether the employee owner is present.
According to the Agency, this provision "impermissibly
amends" those regulations "by adding a precondition
which must be met before local [management] may
conduct searches of items of personal property which
employees bring into the facility." Agency statement
of position at 13-14. The Agency asserts that these
regulations are Government-wide in nature or
"otherwise sufficient to bar negotiations." Id. at

14. In making this assertion, the Agency argues that
    the Authority's test for determining what constitutes
    a Government-wide regulation is too narrow to be
    consistent with the purpose of Congress in enacting
    section 7117(a) of the Statute.

Third, the Agency contends that this provision
contravenes 5 U.S.C. Appendix 3.(1) The Agency states
that the Inspector General of the Department of
Justice is in charge of investigations in cases
involving contraband. Relying on National Federation
of Federal Employees, Local 1300 and General Services
Administration, 18 FLRA 789 (1985) (GSA), the Agency
argues that the Bureau of Prisons cannot, through a
collective bargaining agreement, bind the Inspector
General to procedures that will be used in Inspector
General investigations. Consequently, the Agency
asserts that the provision is beyond the authority of
the local activity to negotiate and is contrary to 5
U.S.C. Appendix 3.

2. The Union

The Union did not file a response to the Agency's
statement of position. However, in the petition, the
Union states that it does not wish to limit
management's right to search property. Rather, the
Union states that it desires to avoid having "a member
of Management . . . search the property of an employee
without that search being witnessed by the Employee."
Petition at 1. The Union states that the provision
allows for a representative to witness the search in
the event that the employee is being detained or
otherwise cannot be present.

B. Analysis and Conclusions

Under section 7106(a)(1) of the Statute, the
right to determine internal security practices
includes an agency's right to determine the policies
and practices that are necessary to safeguard its
operations, personnel and physical property against
internal or external risks. See, for example,
National Federation of Federal Employees, Local 2050
and U.S. Environmental Protection Agency, 35 FLRA 706,
708 (1990) (EPA I). An agency's right to determine
its internal security practices also includes the
right to determine the investigative techniques the
agency will use to achieve its internal security
objectives. See, for example, American Federation of
Government Employees, Local 1164 and U.S. Department
of Health and Human Services, Social Security
Administration, Lynn, Massachusetts, 35 FLRA 1193,
1197 (1990) (SSA, Lynn). Where an agency shows a
link, or reasonable connection, between its goal of safeguarding its personnel, property, or operations
and the practice or investigative technique designed
to implement that goal, a proposal that directly
interferes with the agency's practice or investigative
technique conflicts with the agency's right under
section 7106(a)(1). See, for example, id.

Here, the Agency asserts that it must, in some
circumstances, engage in an unannounced search of
employee property that is on its premises. The Agency
contends that in some circumstances the Agency must
ascertain whether the employee's property contains
contraband without the employee's knowledge so that
further investigation of the matter will not be
compromised.

The Authority has previously held that proposals
requiring that an employee's desk, file cabinets, or
lockers not be searched unless the employee is present
do not directly interfere with management's right to
determine its internal security procedures, but,
rather, constitute procedures that are negotiable
under section 7106(b)(2). See, for example, American
Federation of Government Employees, AFL-CIO, Local
1759 and Department of Defense, Department of the
Army, Headquarters, Fort McPherson, Georgia, 29 FLRA
261 (1987) (Proposal 3); National Treasury Employees
Union and NTEU Chapter 61 and Department of the
Treasury, Internal Revenue Service, Albany District,
New York, 7 FLRA 304 (1981) (IRS, Albany District).
However, it should be noted that in finding that the
proposal at issue in IRS, Albany District was
negotiable, the Authority stated:

The Agency . . . adduces no other relevant
information that would support a finding that the
proposal necessarily would preclude achieving the
objectives of the internal security practice in
question. Hence, in the absence of a showing
that the Union's proposal could not be
implemented consistent with law and regulation in
a manner which would allow the Agency to achieve
its legitimate internal security objectives, it
is concluded that the proposal is within the duty
to bargain under section 7106(b)(2) of the
Statute[.]

7 FLRA at 307.

Here, information presented by the Agency
supports a conclusion that requiring the Agency to
notify an employee, in every instance, of the Agency's
intention to search the employee's property for
contraband would interfere with the Agency's ability
to achieve its legitimate internal security objective
of investigating the supply of contraband to inmates.
Thus, the circumstances presented in this case warrant
an exception to the conclusion generally reached in
previous cases that proposals requiring that employees
be present when their lockers, desks, and other
property are searched are procedural and do not
directly interfere with an agency's management right
to determine its internal security practices. We
conclude that in the circumstances presented in this
case, the disputed portion of this provision directly
interferes with the Agency's right to determine its
internal security practices under section 7106(a)(1)
of the Statute.

This conclusion is consistent with the
Authority's statement in American Federation of
Government Employees, AFL-CIO, Council of Prison
Locals, Local 1661 and U.S. Department of Justice,
Federal Bureau of Prisons, Federal Correctional
Institution, Danbury, Connecticut, 29 FLRA 990 1014
(1987) (FCI, Danbury), reversed as to other matters
sub nom. U.S. Department of Justice, Federal Bureau of
Prisons, Federal Correctional Institution, Danbury,
Connecticut v. FLRA, No. 87-1762 (D.C. Cir. Aug. 9,
1990), that:

A Federal correctional facility is different from
general office space. The Agency has special
security concerns not routinely present in other
work locations. At a correctional facility,
internal security practices are of paramount
importance, and the need to ensure that no
unauthorized weapons or contraband are present is
critical.

See also IRS, Jacksonville District, 23 FLRA 876
(1986). In that decision, the Authority stated that
requiring union representation when the agency was
monitoring employee telephone conversations with
taxpayers would not comport with the surreptitious
nature of the agency's surveillance activities and
would unduly interfere with management's right under
section 7106(a)(1) of the Statute to determine
internal security practices. The Authority noted
"[i]t would produce the anomalous prohibition that
agencies could not engage in unannounced surveillance
of allegedly dishonest employees as an investigative
technique without first informing the employee of what
was being done and providing an opportunity to request
representation." Id. at 880.

To the extent that the decision in FCI, Danbury
suggests that a proposal permitting employees to be
present when their personal property is searched is
in all instances a "procedure which does not interfere
with management's ability to protect its personnel and
property," it will no longer be followed. 29 FLRA at
1015. Rather, in determining whether such notice is
procedural, we will take into account any special
circumstances that are revealed to us in the record
concerning the relationship between notifying
employees of searches and an agency's ability to
achieve its legitimate internal security objectives.

We note that where such an issue exists, the
burden is on the parties to create a record upon which
the Authority can make a negotiability determination.
For example, EPA I, 35 FLRA 706, 711-12 (1990);
National Federation of Federal Employees, Local 1167
v. FLRA, 681 F.2d 886 (D.C. Cir. 1982) (NFFE v. FLRA),
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). A party failing to
meet this burden acts at its peril. For example,
National Association of Government Employees, Local
R1-134 and U.S. Department of the Navy, Naval
Underwater Systems Center, Newport, Rhode Island, 38
FLRA 589, 596 (1990).

The nature of this provision and the thrust of
the Union's statements concerning the intent of the
provision suggest that it is intended as an
arrangement for employees who are adversely affected
by the exercise of management's right to determine
internal security practices. However, the record does
not permit a determination of whether this provision
constitutes an appropriate arrangement within the
meaning of section 7106(b)(3) of the Statute. See
National Association of Government Employees, Local
R14-87 and Kansas Army National Guard, 21 FLRA 24
(1986) (KANG) (the Authority set forth the analytical
framework that it would rely on to determine whether
proposals constitute appropriate arrangements
negotiable under section 7106(b)(3) of the Statute).
As previously noted, the parties bear the burden of
creating a record on which we can make a negotiability
determination. For example, EPA I; NFFE v. FLRA.

Based on the record in this case, we conclude
that the disputed portion of Provision 1 is
nonnegotiable because it directly interferes with
management's right to determine its internal security
practices under section 7106(a)(1).(2) In view of this conclusion we do not address the Agency's
additional arguments. We note, however, that
management's right to determine its internal security
practices encompasses investigations conducted by the
Agency's Inspector General. See GSA, 18 FLRA 789,
795-99 (1985). Thus, our conclusions with respect to
the applicability of that management right to this
provision are equally relevant to those searches that
are conducted under the auspices of the Agency's
Inspector General. Compare Department of Defense,
Defense Criminal Investigative Service; Defense
Logistics Agency and Defense Contract Administration
Services Region, New York, 28 FLRA 1145 (1987), aff'd
sub nom. Defense Criminal Investigative Service v.
FLRA, 855 F.2d 93 (3rd Cir. 1988) (investigations
conducted by an inspector general are subject to the
requirements of section 7114(a)(2)(B) of the Statute,
which governs employees' rights to representation at
examinations conducted in connection with an
investigation).

III. Provision 2

Article 27, Section E. The Employer agrees that
if they become aware of a serious physical threat
on a staff member and/or their family, the staff
member will be notified immediately, and
necessary precautions will be taken to avoid any
physical harm toward that staff member or their
family. [Only the underlined portion is in
dispute.]

A. Positions of the Parties

The Agency argues that this provision is
nonnegotiable because it would allow arbitrators to
substitute their judgment for that of management in
determining its internal security practices. The
Agency argues that the provision is not negotiable for
the additional reason that it would require the Agency
to expend funds in providing protection to employees
and their families that are not authorized by law.

In its petition, the Union states that threats of
death and other physical harm against employees are
not uncommon and that there have been actual attempts
against employees' lives. The Union states that there
has been a past practice of informing employees of
such threats and that it wishes to continue that
practice.

B. Analysis and Conclusions

As discussed in conjunction with Provision 1, an
agency's right to determine its internal security
practices includes the right to determine the policies
and take appropriate actions to secure or safeguard
its personnel, property, and operations. See, for
example, EPA I. Proposals that establish substantive
criteria governing the exercise of a management right
directly interfere with that right. See, for example,
National Federation of Federal Employees, Local 2050
and Environmental Protection Agency, 36 FLRA 618,
625-26 (1990) (EPA II). It is not necessary that a
proposal dictate the specific action that an agency
must take in order for that proposal to constitute a
substantive limitation on the exercise of a management
right. A general criterion that would restrict the
range of an agency's discretion pursuant to a
management right would similarly constitute a
substantive limitation on that right. See, for
example, id. at 626-27.

The disputed portion of Provision 2 establishes a
substantive criterion that governs the actions that
the Agency is to take in safeguarding its personnel.
That is, the provisions require that the Agency must
take "necessary precautions" to avoid any physical
harm to employees who are the subject of a physical
threat. Consequently, we conclude that the disputed
portion of Provision 2 directly interferes with
management's right to determine its internal security
practices under section 7106(a)(1) of the Statute.

This provision is clearly intended to prevent
anticipated adverse effects on employees of the
exercise of management's right to determine its
internal security practices by prescribing a criterion
to ensure the protection of Agency personnel.
Consequently, we conclude that it constitutes an
arrangement within the meaning of section 7106(b)(3)
of the Statute. See, for example, National
Association of Government Employees, SEIU, AFL-CIO and
Veterans Administration, Veterans Administration
Medical Center, Department of Memorial Affairs, 40
FLRA 657 (1991) (Provision 8, which sought to
ameliorate the adverse effects of the exercise of a
management right by inhibiting the exercise of that
right, constituted an arrangement).

However, as is the case with Provision 1, the
record that has been established in conjunction with
this provision does not contain sufficient information
to allow a determination as to whether this
arrangement is appropriate. For example, the record
provides no explanation as to what is contemplated by
the term "necessary precautions." Thus, the record
does not enable us to make a judgment concerning the
burdens that would be imposed on the Agency in meeting
the requirement that it take "necessary precautions,"
and we are not able to do so independently. Compare
EPA II (in finding that Proposal 1, which required the
agency to provide the same level of security to
employees in two building as that which existed in a
third building, was an appropriate arrangement, the
Authority had available in the record a description of
the level of the security measures that existed in the
third building).

In the absence of a record on which to base a
conclusion that the disputed portion of Provision 2
constitutes an appropriate arrangement that is
negotiable under section 7106(b)(3) of the Statute, we
conclude that that portion of the provision is
nonnegotiable because it directly interferes with
management's right to determine its internal security
practices. In view of this conclusion, we do not
address the Agency's contention that the disputed
portion of the provision is nonnegotiable for the
additional reason that it would require expenditures
of unauthorized appropriated funds.

IV. Order

The Union's petition for review is dismissed.

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

1. 5 U.S.C. Appendix 3 is the codification of the
   Inspector General Act of 1978.

2. In its statement of position, the Agency cites a
   number of court decisions that relate to the
   constitutionality of searches of employees and property in general and
   specifically in the context of correctional
   institutions. The Union has made no claims as to the
   constitutionality of the searches that are the subject
   of this provision. In this decision, we do not
   address the issue of the constitutionality of the
   searches. Rather, for purposes of ruling on the
   negotiability of this provision, we will assume that
   the Agency's actions are lawful.