American Federation of Government Employees, Local 1917, AFL-CIO (Union) and  U.S. Department of Justice, Immigration and Naturalization Service, New York City District Office (Activity) 



[ v04 p150 ]
04:0150(25)NG
The decision of the Authority follows:


 4 FLRA No. 25
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1917
 (Union)
 
 and
 
 U.S. DEPARTMENT OF JUSTICE,
 IMMIGRATION AND NATURALIZATION
 SERVICE, NEW YORK CITY DISTRICT OFFICE
 (Activity)
                                            Case No. O-NG-215
 
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1917
 (Union)
 
 and
 
 U.S. DEPARTMENT OF JUSTICE,
 IMMIGRATION AND NATURALIZATION
 SERVICE, NEW YORK CITY DISTRICT OFFICE
 (Activity)
                                            Case No. O-NG-216
 
              CONSOLIDATED DECISION ON NEGOTIABILITY APPEALS
 
    THESE CASES COME BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.).  INASMUCH AS
 BOTH CASES INVOLVE THE SAME PARTIES AND ARISE OUT OF THE SAME
 NEGOTIATIONS, THE AGENCY'S UNOPPOSED REQUEST THAT THE CASES BE
 CONSOLIDATED FOR CONSIDERATION AND DECISION IS GRANTED.
 
    THE RECORD BEFORE THE AUTHORITY DISCLOSES THAT THE INSTANT CASES
 ARISE OUT OF NEGOTIATIONS BETWEEN THE UNION AND THE ACTIVITY FOR A LOCAL
 SUPPLEMENT TO AN EXISTING MASTER AGREEMENT NEGOTIATED AT THE NATIONAL
 LEVEL BETWEEN THE IMMIGRATION AND NATURALIZATION SERVICE (INS) AND THE
 AFGE COUNCIL OF INS LOCALS.  DURING NEGOTIATIONS AT THE LOCAL LEVEL, THE
 UNION SUBMITTED A NUMBER OF PROPOSALS WHICH THE ACTIVITY, WITH THE
 EXCEPTION OF PROPOSAL A2 SET FORTH AND DISCUSSED SEPARATELY BELOW,
 DECLARED TO BE IN CONFLICT WITH PROVISIONS CONTAINED IN THE MASTER
 AGREEMENT.  THE UNION'S PROPOSALS ARE SET FORTH IN AN APPENDIX HERETO.
 
    THE UNION THEREAFTER FILED THE PETITIONS FOR REVIEW INVOLVING THE
 PROPOSALS CONTAINED IN THE APPENDIX, WHICH PETITIONS HAVE BEEN
 CONSOLIDATED FOR DECISION HEREIN.  CONTRARY TO THE AGENCY'S ASSERTIONS,
 THE AUTHORITY FINDS THE PETITIONS FOR REVIEW WERE TIMELY FILED, PROPERLY
 SERVED, AND OTHERWISE PROCEDURALLY SUFFICIENT UNDER THE AUTHORITY'S
 RULES AND REGULATIONS.  MOREOVER, IT DOES NOT APPEAR THE AGENCY WAS
 PREJUDICED IN ANY MANNER AS A RESULT OF THE PROCEDURAL IRREGULARITIES
 ALLEGED IN ITS STATEMENT OF POSITION.
 
    THE AGENCY FURTHER CONTENDS, IN RESPONSE TO THE UNION'S APPEALS
 HEREIN, INTER ALIA, THAT ALL OF THE UNION'S PROPOSALS (EXCEPT PROPOSAL
 A2) ARE "IN CONTRAVENTION OF CERTAIN CONTROLLING PROVISIONS OF THE
 MASTER AGREEMENT . . . " THE UNION ASSERTS, HOWEVER, THAT "(T)HE
 QUESTION OF WHETHER THE UNION'S PROPOSALS VIOLATE THE PARTIES'
 NEGOTIATED AGREEMENT IS ONE WHICH THE PARTIES MUST SETTLE BETWEEN
 THEMSELVES ACCORDING TO THEIR NEGOTIATED ARRANGEMENTS" AND THAT "THE
 AUTHORITY SHOULD IGNORE THIS INTERNAL DISPUTE BETWEEN THE PARTIES AS A
 MATTER THAT DOES NOT FALL WITHIN ITS JURISDICTION AT THIS TIME."
 
    AS INDICATED ABOVE, THE PARTIES ARE ESSENTIALLY IN DISPUTE CONCERNING
 THE THRESHOLD QUESTION AS TO WHETHER THE MASTER AGREEMENT, NEGOTIATED AT
 THE NATIONAL LEVEL, AUTHORIZES BARGAINING AT THE LOCAL LEVEL ON CERTAIN
 MATTERS CONTAINED THEREIN.  IN AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1661 AND DEPARTMENT OF JUSTICE, BUREAU OF
 PRISONS, FEDERAL CORRECTIONAL INSTITUTION, DANBURY, CONNECTICUT, 2 FLRA
 NO. 56(1980), THE AUTHORITY DECIDED, WITH RESPECT TO A QUESTION
 SUBSTANTIALLY IDENTICAL TO THOSE PRESENTED HERE, THAT THE PROPER FORUM
 IN WHICH TO RESOLVE DISPUTES OVER THE MEANING OF PROVISIONS CONTAINED IN
 THE MASTER AGREEMENT WOULD BE THAT WHICH THE PARTIES THEMSELVES HAVE
 ADOPTED FOR SUCH PURPOSE.  FOR THE REASONS FULLY SET FORTH IN THAT
 DECISION, THE AUTHORITY FINDS THE INSTANT PETITION IS NOT APPROPRIATE
 FOR RESOLUTION UNDER THE PROCEDURES SET FORTH IN SECTION 7117 OF THE
 STATUTE AND PART 2424 OF THE AUTHORITY'S RULES AND REGULATIONS.  SEE
 ALSO AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2272
 AND DEPARTMENT OF JUSTICE, U.S. MARSHALS SERVICE, DISTRICT OF COLUMBIA,
 2 FLRA NO. 113(1980).
 
    ACCORDINGLY, AND APART FROM OTHER CONSIDERATIONS, THE UNION'S APPEAL
 IS HEREBY DENIED, WITHOUT PREJUDICE TO THE RENEWAL OF ITS CONTENTION
 THAT THE MATTERS IN DISPUTE ARE NEGOTIABLE UNDER THE STATUTE IN A
 PETITION DULY FILED WITH THE AUTHORITY AFTER IT IS RESOLVED, UNDER
 APPLICABLE PROCEDURES, THAT BARGAINING ON SUCH MATTERS IS NOT PRECLUDED
 BY THE CONTROLLING AGREEMENT.
 
    THE ONLY REMAINING ISSUE INVOLVES THE NEGOTIABILITY OF UNION PROPOSAL
 A2, WHICH PROVIDES AS FOLLOWS:
 
                              UNION PROPOSAL
 
    PROPOSAL A2.  ARTICLE 3, USE OF OFFICIAL FACILITIES
 
    A GUN BOX OR SIMILARLY SECURE AREA SHALL BE MADE AVAILABLE TO SEAPORT
 INSPECTORS WHILE ON
 
    DUTY IN THE DISTRICT OFFICE AND TO DETENTION OFFICERS WHILE ON DUTY
 INSIDE THE SERVICE
 
    PROCESSING CENTER.  THIS AREA SHALL BE USED EXCLUSIVELY FOR THE
 STORAGE OF WEAPONS NOT
 
    REQUIRED BY THE OFFICER AT THAT TIME.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL A2 IS OUTSIDE THE AGENCY'S
 DUTY TO BARGAIN UNDER SECTION 7117 OF THE STATUTE /1/ BECAUSE IT DOES
 NOT RELATE TO THE CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES.  A FURTHER
 QUESTION IS WHETHER SUCH PROPOSAL CONCERNS A MATTER RELATED TO THE
 TECHNOLOGY OF PERFORMING THE WORK OF THE AGENCY, WHICH UNDER SECTION
 7106(B)(1), IS NEGOTIABLE SOLELY AT THE ELECTION OF THE AGENCY.  /2/
 
                                  OPINION
 
    CONCLUSION:  UNION PROPOSAL A2 IN PART IS OUTSIDE THE AGENCY'S DUTY
 TO BARGAIN UNDER SECTION 7117 OF THE STATUTE AND IN PART VIOLATES THE
 AGENCY'S RIGHT TO DETERMINE THE TECHNOLOGY OF PERFORMING ITS WORK UNDER
 SECTION 7106(B)(1) OF THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION
 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10)), THE
 AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
 IS SUSTAINED.
 
    REASONS:  THE FOREGOING PROPOSAL WOULD REQUIRE THE ACTIVITY TO
 PROVIDE A STORAGE AREA OR "GUN BOX" ON ITS PREMISES WHERE THE EMPLOYEES
 WOULD BE ABLE TO SECURE THEIR WEAPONS DURING WORKING HOURS INSTEAD OF
 LEAVING SUCH WEAPONS IN LESS SECURE AREAS SUCH AS THE EMPLOYEES'
 PRIVATELY OWNED VEHICLES.  THE UNION CONTENDS PROPOSAL A2 "IS A 'WORKING
 CONDITION' IN THE SAME SENSE THAT FACILITIES ARE PROVIDED FOR ANY OTHER
 PERSONAL PROPERTY STORAGE PURPOSE," AND, FURTHER, THAT "(I)NSOFAR AS THE
 GUNBOX WOULD BE USED TO STORE THE EMPLOYER'S OFFICIALLY ISSUED HANDGUNS,
 THE PROPOSAL CONSTITUTES AN 'APPROPRIATE ARRANGEMENT'" AS PROVIDED IN
 SECTION 7106(B)(3) OF THE STATUTE.  /3/ THE AGENCY ASSERTS, ON THE OTHER
 HAND, THAT INSOFAR AS THE PURPOSE OF UNION PROPOSAL A2 IS TO PROVIDE
 "PHYSICAL SECURITY FOR PRIVATELY OWNED WEAPONS WHICH (CERTAIN UNIT
 EMPLOYEES) CHOOSE OR MAY CHOOSE TO CARRY WITH THEM WHILE ON THEIR WAY TO
 AND FROM WORK (I.E. OFF DUTY) FOR THEIR OWN PROTECTION (AND ARE
 CURRENTLY LEAVING IN THEIR OWN VEHICLES), IT DOES NOT ADDRESS, AND WOULD
 NOT AFFECT THE WORKING CONDITIONS OF SUCH EMPLOYEES AS DEFINED IN
 (SECTION 7103(A)(12) OF THE STATUTE AND) IS, THEREFORE, NOT A MANDATORY
 SUBJECT FOR BARGAINING." THE AGENCY FURTHER ASSERTS THAT, TO THE EXTENT
 THE PROPOSAL ADDRESSES THE STORAGE OF OFFICIAL WEAPONS WHICH UNIT
 EMPLOYEES ARE AUTHORIZED TO WEAR, THE PROPOSAL IS EXCEPTED FROM THE
 OBLIGATION TO BARGAIN BECAUSE, AMONG OTHER THINGS, IT CONCERNS THE
 TECHNOLOGY OF PERFORMING THE AGENCY'S WORK WITHIN THE MEANING OF SECTION
 7106(B)(1) OF THE STATUTE (SUPRA NOTE 2).
 
    THE AUTHORITY FINDS, IN AGREEMENT WITH THE AGENCY, THAT UNION
 PROPOSAL A2 IS OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE.  THUS, AS
 THE UNION'S STATED PURPOSE IS, IN PART, TO PROVIDE A SECURE STORAGE AREA
 FOR UNIT EMPLOYEES' PRIVATE WEAPONS WHICH ARE NEITHER REQUIRED NOR
 PERMITTED TO BE USED IN THE PERFORMANCE OF SUCH EMPLOYEES' OFFICIAL
 DUTIES, IT IS CONCLUDED THAT UNION PROPOSAL A2 IS NOT DIRECTLY RELATED
 TO THE PERSONNEL POLICIES, PRACTICES AND MATTERS AFFECTING WORKING
 CONDITIONS OF UNIT EMPLOYEES AND THEREFORE IS NOT WITHIN THE SCOPE OF
 BARGAINING UNDER SECTION 7117 OF THE STATUTE.
 
    THE AUTHORITY FINDS FURTHER, INSOFAR AS THE DISPUTED PROPOSAL IS
 INTENDED TO REQUIRE THE ACTIVITY TO PROVIDE A SECURE STORAGE AREA FOR
 THE OFFICIAL WEAPONS WHICH UNIT EMPLOYEES ARE AUTHORIZED TO WEAR IN THE
 PERFORMANCE OF THEIR DUTIES, IT CONCERNS THE "TECHNOLOGY .  . . OF
 PERFORMING WORK" WITHIN THE MEANING OF SECTION 7106(B)(1) OF THE STATUTE
 AND IS, THEREFORE, NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY.  UNION
 PROPOSAL A2 WOULD REQUIRE AND THEREFORE WOULD BE DETERMINATIVE OF
 WHETHER THE ACTIVITY WILL ADOPT A PARTICULAR TECHNOLOGY OF PERFORMING
 WORK, E.G., THE USE OF A "GUN BOX" AS OPPOSED TO SOME OTHER SECURE
 FACILITY FOR THE STORAGE OF ITS OFFICIAL WEAPONS, OR NO STORAGE FACILITY
 AT ALL.  IT DOES NOT MERELY PROVIDE THE UNION WILL HAVE ACCESS TO A
 PARTICULAR WEAPONS STORAGE FACILITY WHICH MANAGEMENT HAS SELECTED AND
 WHICH IS IN EXISTENCE FOR SUCH PURPOSE.  /4/ ACCORDINGLY, CONTRARY TO
 THE UNION'S ASSERTION, THE DISPUTED PROPOSAL DOES NOT CONSTITUTE MERELY
 AN "APPROPRIATE ARRANGEMENT" FOR EMPLOYEES "ADVERSELY AFFECTED" BY THE
 EXERCISE OF MANAGEMENT AUTHORITY WITHIN THE MEANING OF SECTION
 7106(B)(3) OF THE STATUTE (SUPRA NOTE 3), INASMUCH AS MANAGEMENT HAS NOT
 YET EXERCISED ANY SUCH AUTHORITY.  RATHER, THE PROPOSAL INSTEAD SEEKS TO
 REQUIRE MANAGEMENT TO EXERCISE ITS RIGHTS IN A PARTICULAR MANNER,
 NOTWITHSTANDING MANAGEMENT'S ELECTION NOT TO BARGAIN WITH RESPECT
 THERETO.
 
    THEREFORE SINCE UNION PROPOSAL A2 CONCERNS A MATTER RELATED TO THE
 TECHNOLOGY OF PERFORMING THE WORK OF THE AGENCY, WHICH, UNDER SECTION
 7106(B)(1) OF THE STATUTE, IS NEGOTIABLE ONLY AT THE ELECTION OF THE
 AGENCY, THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS OUTSIDE THE DUTY TO
 BARGAIN MUST BE SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 4, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
                      PROPOSALS IN CASE NO. 0-NG-215
 
    PROPOSAL A1.  ARTICLE 2, UNION RELATIONS AT THE LOCAL LEVEL.
 
    REPRESENTATIVES OF THE DISTRICT AND THE LOCAL SHALL HAVE THE
 OPPORTUNITY AT ANY TIME TO MEET AT THE REQUEST OF EITHER PARTY FOR THE
 SETTLEMENT OF LOCAL PROBLEMS AND FOR THE IMPROVEMENT OF COMMUNICATIONS,
 UNDERSTANDING, AND COOPERATION BETWEEN THE DISTRICT AND ITS EMPLOYEES.
 A MEETING SHALL BE HELD MONTHLY BETWEEN THE PRESIDENT OF THE LOCAL AND
 HIS DESIGNEES AND THE DISTRICT DIRECTOR AND HIS DESIGNEES TO DISCUSS
 PROBLEMS OF MUTUAL INTEREST.
 
    PROPOSAL A2.  ARTICLE 3, USE OF OFFICIAL FACILITIES
 
    A GUN BOX OR SIMILARLY SECURE AREA SHALL BE MADE AVAILABLE TO SEAPORT
 INSPECTORS WHILE ON DUTY IN THE DISTRICT OFFICE AND TO DETENTION
 OFFICERS WHILE ON DUTY INSIDE THE SERVICE PROCESSING CENTER.  THIS AREA
 SHALL BE USED EXCLUSIVELY FOR THE STORAGE OF WEAPONS NOT REQUIRED BY THE
 OFFICER AT THAT TIME.
 
                      PROPOSALS IN CASE NO. 0-NG-216
 
    PROPOSAL B1.  IF A DETENTION OFFICER QUALIFIES IN THE SAFE USE OF
 FIREARMS, HE MAY, AT HIS DISCRETION, WEAR FIREARMS WHILE ON DUTY OUTSIDE
 THE SERVICE PROCESSING CENTER.
 
    PROPOSAL B2.  WHEN AN EMPLOYEE BELIEVES THAT A WORK SITUATION,
 EQUIPMENT OR ENVIRONMENT POSE AN IMMEDIATE THREAT TO HIS/HER HEALTH
 AND/OR SAFETY, THE PROBLEM WILL BE REFERRED TO THE SAFETY OFFICER.  THE
 EMPLOYEE WILL COMPLY WITH THE SAFETY OFFICER'S DECISION.  THE EMPLOYEE
 MAY GRIEVE THE DECISION OR TAKE OTHER APPROPRIATE REDRESS.
 
    PROPOSAL B3.  THE LOCAL DESIRES TO MEET WITH THE DISTRICT DIRECTOR,
 HIMSELF, ON A MONTHLY BASIS.  IT IS BELIEVED THAT MANY PROBLEM AREAS
 WHICH CAN BE BROUGHT DIRECTLY TO HIS ATTENTION CAN BE RESOLVED PROMPTLY
 RATHER THAN THROUGH MEDIARIES INTERPRETING AND PRESENTING THEIR VERSION
 OF ISSUES.  WE BELIEVE THAT THE WORDING IN THE MASTER AGREEMENT ALLOWS
 FOR THE LOCAL PARTIES TO DETERMINE WHO THE PARTICIPATING REPRESENTATIVE
 WILL BE.
 
    PROPOSAL B4.  DETENTION OFFICERS WILL BE PERMITTED TO BE ARMED WHEN
 DETAILED TO DUTIES IN HIGHER CRIME AREAS OR WHEN APPREHENDING ALIENS IN
 A HOSTILE ENVIRONMENT.  THE SAFETY OFFICER WILL MAKE SUCH
 DETERMINATIONS.  THE EMPLOYEE MAY GRIEVE THIS DETERMINATION OR TAKE
 OTHER APPROPRIATE REDRESS.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
    (A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
 BARGAIN IN GOOD FAITH
 
    SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
 GOVERNMENT-WIDE RULE OR
 
    REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
 REGULATION ONLY IF THE RULE
 
    OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
 
    THE TERM "MATTERS" AS USED IN SECTION 7117(A)(1) IS EXPLAINED BY
 REFERENCE TO THE DEFINITION OF "COLLECTIVE BARGAINING" IN SECTION
 7103(A)(12) AND "CONDITIONS OF EMPLOYMENT" IN SECTION 7103(B)(14) OF THE
 STATUTE:
 
    SEC. 7103.  DEFINITIONS;  APPLICATION
 
   *          *          *          *
 
 
    (12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
 OBLIGATION OF THE
 
    REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
 EMPLOYEES IN AN APPROPRIATE
 
    UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
 BARGAIN IN A GOOD-FAITH
 
    EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
 EMPLOYMENT AFFECTI