National Treasury Employees Union and Department of Homeland Security, 0-NG-2733, April 22, 2004, 59 FLRA No. 154. Department of Homeland Security and National Treasury Employees Union, WA-CA-02-0485, May 6, 2004, 59 FLRA No. 165.

• In a negotiability decision, the Authority held that proposals seeking to create exceptions to the agency's policy of prohibiting inspectors from carrying any wireless communication devices while on duty in primary and secondary inspection areas excessively intefered with the right to determine internal security practices. "[A]llowing employees to carry such devices will increase the risk that inspectors will be distracted from their duties in inspecting individuals and cargo and detecting terrorists, drug-smuggling or other illicit activity."
• In an unfair labor practice case, it held that the agency did not change conditions of employment when -- on discovering that an immigration inspector had used a personal cell phone in an attempt to allow drug smugglers to enter the U. S. without being inspected -- it issued interim guidelines reaffirming its policy of prohibiting cell phones and pagers in primary and secondary inspection areas. However, the agency committed a ULP when it didn't respond to the union's request to rescind the interim guidelines.

59 FLRA No. 154. The agency has a policy of prohibiting all employees from carrying personal communication devices while on duty in primary and secondary inspection areas. The union's three proposals would allow employees to (1) carry such devices in these areas, (2) get supervisory permission to make outgoing calls, and (3), allow employees, workload permitting, to leave the primary or secondary areas to make outgoing calls if supervisory permission is denied. FLRA, disagreeing with the union's claim that the proposals operated independently of each other, found that the agency had established a reasonable link between its prohibition and its mission of ensuring the security of the U.S. homeland. It also agreed with the agency's claim that allowing employees to carry such devices would "increase the risk that inspectors would be distracted from their duties in inspecting individuals and cargo and detecting terrorists, drug-smuggling or other illicit activity[.]"

It went on to find that the proposals affected management's right to determine internal security and was neither a §7106(b)(2) "procedure" nor a §7106(b)(3) "arrangement". Regarding the latter, it assumed that the proposals were sufficiently tailored "arrangements" and acknowledged that they would provide the benefit of allowing employees to be in contact with family members in the event of personal emergencies, as well as with managers and other law enforcement officials. However, that benefit "is more than outweighed by the Agency's goal in safeguarding its operations and the public from the dangers posed by allowing inspectors to carry [such devices] while on duty in primary and secondary inspection areas."

Significantly, the proposals would reverse the Agency's decision to establish a policy that completely prohibits all employees from carrying personal communication devices while on duty in primary and secondary inspection areas. The Authority previously has found that proposals having this effect do not constitute negotiable appropriate arrangements.

In short, there was no duty to bargain on the proposals because they excessively interfered with the agency's right to determine its internal security practices.

59 FLRA No. 165. On learning that an Immigration Inspector had used a cell phone in attempting to allow drug smugglers to enter the country without an inspection, the agency implemented a policy called "Interim Guidelines on Cell Phones and Pagers in Primary and Secondary Inspection Areas" (Guidelines). The union, which had not received notice and an opportunity to bargain, asked that the Guidelines be rescinded until the parties could bargain over them. When the agency didn't respond, charges were filed and the General Council issued a complaint.

No change in conditions of employment. FLRA agreed with the ALJ that there had not been a change in conditions of employment. The record testimony also supported the ALJ's finding that although some employees at the Champlain port used cell phones and pagers in the primary and secondary inspection areas, this was atypical of the practices throughout the country. (There are approximately 300 ports nationwide and the Buffalo port has approximately 500 employees.)

The practice was to prohibit, not to permit, use of cell phones. It also found that substantial evidence supported the ALJ's finding that there was no past practice of using cell phones or pagers in the primary and secondary inspection areas. The practice was instead to prohibit their use.

[T]he evidence shows that there are a large number of ports as compared to the small number of reported incidents of cell phone use. . . . In our view, the few instances of cell phone use that have been shown area insufficient to establish a widespread practice of using personal cell phones and pagers in the primary and secondary inspection areas or demonstrate that management was aware of, and acquiesced to, the practice.

The failure-to-respond ULP is nonprecedential. In footnote 2 the Authority noted that since no exceptions had been filed to the ALJ's finding that the agency violated the Statute by failing to respond to the union's request to rescind the interim regulations, "we adopt this finding without precedential significance[.]" It referred to 58 FLRA 418, 421, where it had said the following:

Under §2423.41(a) of the Authority's Regulations, in the absence of the filing of exceptions within the established time limits, the findings, conclusions, and recommendations of the decision of the administrative law judge shall, without precedential significance, become the findings, conclusions, decision and order of the Authority. Although such judges' decisions are without precedential value, there is nothing in the Authority's regulations which prohibits referencing or considering such prior decisions.

Posting remedy modified. FLRA turned down the General Counsel's request to require post-implementation bargaining as a remedy for failing to respond to the union's request that the agency rescind the interim guidelines. "Because the implementation of the interim guidelines did not change a condition of employment and the parties are bargaining over a permanent directive that will replace the interim guidelines, we find that bargaining over the interim guidelines is not warranted and would serve no useful purpose." It noted, in this connection, that it had already ruled, in 59 FLRA No. 154, that certain proposals were nonnegotiable.

FLRA did, however, modify the ALJ-recommended order by excluding paragraphs in the posted notice referring to changes in conditions of employment and by extending the scope of posting by requiring a nationwide posting instead of just the agency's Central Region.