10:0061(17)NG - AFGE Local 3525 and Justice, Board of Immigration Appeals -- 1982 FLRAdec NG



[ v10 p61 ]
10:0061(17)NG
The decision of the Authority follows:


 10 FLRA No. 17
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 3525
 Union
 
 and
 
 UNITED STATES DEPARTMENT
 OF JUSTICE, BOARD OF
 IMMIGRATION APPEALS
 Agency
 
                                            Case No. O-NG-171
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THIS CASE COMES BEFORE THE AUTHORITY PURSUANT TO SECTION
 7105(A)(2)(E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
 (THE STATUTE).  THE ISSUES PRESENTED CONCERN THE NEGOTIABILITY OF FOUR
 UNION PROPOSALS MADE IN RESPONSE TO THE AGENCY'S RELOCATION OF 32
 BARGAINING UNIT EMPLOYEES IN THE BOARD OF IMMIGRATION APPEALS (BIA).
 /1/
 
                             UNION PROPOSAL 1
 
    LOCAL 3525 BELIEVES IT IS IMPERATIVE THAT THE MANAGEMENT OF THE BOARD
 AND THE DEPARTMENT OF
 
    JUSTICE PROVIDE A DAILY SHUTTLE BUS SERVICE AT REGULARLY SCHEDULED
 INTERVALS BETWEEN THE MAIN
 
    BUILDING OF THE DEPARTMENT OF JUSTICE AND THE PROPOSED NEW LOCATION
 OF THE BOARD OF
 
    IMMIGRATION APPEALS.  SUCH SERVICE IS NECESSARY TO INSURE EMPLOYEE
 ACCESS BOTH TO SERVICES OF
 
    THE DEPARTMENT, SUCH AS THE CREDIT UNION AND THE HEALTH UNIT, AND TO
 RESEARCH FACILITIES IN
 
    THE DISTRICT OF COLUMBIA.  SHUTTLE BUS SERVICE IS ALSO NECESSARY TO
 ENABLE EMPLOYEES TO REACH
 
    THE NEW WORK LOCATION AS THE PRESENT METROBUS/METRORAIL SERVICE IS
 CLEARLY INADEQUATE TO
 
    INSURE THAT EMPLOYEES WILL BE ABLE TO REACH THEIR WORKPLACES IN
 ACCORDANCE WITH THEIR PRESENT
 
    WORK SCHEDULES.
 
                      QUESTIONS BEFORE THE AUTHORITY
 
    THE QUESTIONS ARE WHETHER, AS THE AGENCY CONTENDS, UNION PROPOSAL 1
 IS INCONSISTENT WITH THE AGENCY'S RIGHTS UNDER SECTION 7106(A)(1) /2/
 AND SECTION 7106(B)(1) /3/ OF THE STATUTE;  OR THE PROVISIONS OF 31
 U.S.C. 638A(C)(2).  /4/
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSAL 1 IS NOT INCONSISTENT WITH
 SECTION 7106(A)(1) OR SECTION 7106(B)(1) OF THE STATUTE, OR 31 U.S.C.
 638A(C)(2).  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS, IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST
 (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN ON THIS PROPOSAL.
 /5/
 
    REASONS:  AS TO SECTION 7106(B)(1), THE AGENCY CONTENDS THAT THE
 PROPOSAL WOULD REQUIRE THE TRANSPORTATION OF EMPLOYEES BY SHUTTLE BUS TO
 AND FROM RESEARCH FACILITIES IN CONNECTION WITH THE PERFORMANCE OF THEIR
 DUTIES AND, THEREFORE, CONCERNS THE TECHNOLOGY, METHODS, AND MEANS OF
 PERFORMING WORK.  MANAGEMENT'S RESERVED AUTHORITY IN THIS CONNECTION
 CONSISTS OF THE RIGHT TO DETERMINE WHICH TECHNOLOGY, METHODS, AND MEANS
 WILL BE USED IN ACCOMPLISHING OR FURTHERING THE PERFORMANCE OF AN
 AGENCY'S WORK.  AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL
 EMPLOYEES, AFL-CIO, LOCAL 2477 AND LIBRARY OF CONGRESS, WASHINGTON, D.C.
 (AND THE CASE CONSOLIDATED THEREWITH), 7 FLRA NO. 89(1982);  NATIONAL
 TREASURY EMPLOYEES UNION AND U.S.  CUSTOMS SERVICE, REGION VIII, SAN
 FRANCISCO, CALIFORNIA, 2 FLRA 254(1979).  THE AGENCY HEREIN HAS NOT
 SHOWN, NOR DOES IT OTHERWISE APPEAR, HOWEVER, THAT TRANSPORTATION OF
 EMPLOYEES AS PROPOSED BY THE UNION IS PRINCIPALLY RELATED TO THE
 PERFORMANCE OF THE AGENCY'S WORK, I.E., ADMINISTERING IMMIGRATION LAWS
 AND RULING UPON IMMIGRATION APPEALS.  /6/ RATHER, THE AUTHORITY FINDS
 THAT THE PROPOSAL CONCERNS A MATTER, I.E., TRANSPORTATION, WHICH
 PRINCIPALLY AFFECTS WORKING CONDITIONS OF EMPLOYEES WHO WOULD BE
 ADVERSELY IMPACTED BY RELOCATION;  SUCH TRANSPORTATION WOULD BE ONLY
 INCIDENTAL TO THE PERFORMANCE OF THE AGENCY'S WORK.  AS THE AGENCY HAS
 NOT SHOWN THAT THE PROPOSAL DIRECTLY RELATES TO THE PERFORMANCE OF ITS
 WORK, IT HAS NOT ESTABLISHED THAT THE PROPOSAL RELATES, AS IT CLAIMS, TO
 MATTERS WHICH MAY BE NEGOTIATED ONLY AT THE ELECTION OF THE AGENCY
 PURSUANT TO SECTION 7106(B)(1) OF THE STATUTE.
 
    AS TO SECTION 7106(A)(1), THE AGENCY CLAIMS THAT UNION PROPOSAL 1
 CONFLICTS WITH ITS RIGHT TO DETERMINE ITS "ORGANIZATION" ARGUING THAT IT
 HAS NOT BEEN DELEGATED AUTHORITY TO PROCURE A MOTOR VEHICLE AS THE
 PROPOSAL WOULD REQUIRE;  RATHER, WITHIN THE DEPARTMENT OF JUSTICE (DOJ),
 SUCH AUTHORITY IS DELEGATED ONLY TO THE ASSISTANT ATTORNEY GENERAL FOR
 ADMINISTRATION.
 
    THIS AGENCY ARGUMENT DOES NOT PROVIDE A BASIS FOR FINDING THAT THE
 DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE IN
 THAT IT DOES NOT SUPPORT A FINDING THAT THE PROPOSAL IS INCONSISTENT
 WITH SECTION 7106(A)(1) OR ANY OTHER APPLICABLE LAW OR REGULATION.  SEE
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3656 AND
 FEDERAL TRADE COMMISSION, BOSTON REGIONAL OFFICE, MASSACHUSETTS, 4 FLRA
 NO. 92(1980).  MORE SPECIFICALLY, THE ARGUMENT DOES NOT SUPPORT THE
 CLAIM THAT THE PROPOSAL CONFLICTS WITH MANAGEMENT'S RIGHT TO DETERMINE
 ITS ORGANIZATION BECAUSE SUCH SECTION DOES NOT RESERVE TO MANAGEMENT THE
 RIGHT TO FORECLOSE BARGAINING ON AN OTHERWISE NEGOTIABLE MATTER BY
 DELEGATING AUTHORITY AS TO THAT MATTER ONLY TO AN ORGANIZATIONAL LEVEL
 ABOVE THE LEVEL OF RECOGNITION AND BARGAINING.  RATHER, UNDER SECTION
 7114(B)(2) OF THE STATUTE, AN AGENCY HAS THE OBLIGATION "TO BE
 REPRESENTED AT THE NEGOTIATIONS BY DULY AUTHORIZED REPRESENTATIVES
 PREPARED TO DISCUSS AND NEGOTIATE ON ANY CONDITION OF EMPLOYMENT . . .
 ." THUS, UNDER THE STATUTE, AN AGENCY, FOR THE PURPOSE OF BARGAINING
 WITH THE EXCLUSIVE REPRESENTATIVE, IS OBLIGATED TO PROVIDE
 REPRESENTATIVES WHO ARE EMPOWERED TO NEGOTIATE AND ENTER INTO AGREEMENT
 ON ALL MATTERS WITHIN THE SCOPE OF NEGOTIATIONS.  AFGE, LOCAL 3656, 4
 FLRA NO. 92(1980).
 
    FINALLY, THE AGENCY CLAIMS IN ESSENCE THAT THE PROPOSAL INSOFAR AS IT
 WOULD PROVIDE TRANSPORTATION TO EMPLOYEES BY GOVERNMENT VEHICLE FROM A
 POINT MIDWAY BETWEEN THEIR HOMES AND THEIR PLACE OF EMPLOYMENT IS
 INCONSISTENT WITH 31 U.S.C. 638A(C)(2) BECAUSE IT WOULD PREVENT THE
 VEHICLE FROM BEING USED EXCLUSIVELY FOR OFFICIAL PURPOSES.  THIS CLAIM
 IS BASED UPON AN INTERPRETATION OF THAT SECTION WHICH IS MORE
 RESTRICTIVE THAN REQUIRED.  THE PRIMARY PURPOSE OF SECTION 638A(C)(2),
 AS APPLIED BY THE COMPTROLLER GENERAL, IS TO PREVENT THE USE OF
 GOVERNMENT VEHICLES FOR THE PERSONAL CONVENIENCE OF EMPLOYEES.  /7/
 THUS, IF A VEHICLE IS USED FOR OFFICIAL PURPOSES AS DETERMINED BY THE
 AGENCY WITHIN ITS ADMINISTRATIVE DISCRETION, TRANSPORTATION OF ANY OTHER
 EMPLOYEES WHICH IS INCIDENT TO SUCH USE WOULD NOT NECESSARILY BE
 INCONSISTENT WITH SECTION 638A(C)(2).  /8/ THAT IS, SECTION 638A(C)(2)
 WOULD NOT BE VIOLATED WHERE TRANSPORTATION OF AN EMPLOYEE IN A
 GOVERNMENT VEHICLE FROM A POINT MIDWAY BETWEEN HIS HOME AND PLACE OF
 EMPLOYMENT IS SUCH THAT HE MERELY ACCOMPANIES OTHER EMPLOYEES ON AN
 ALREADY AUTHORIZED TRIP AND THAT THE ADDITIONAL TRANSPORTATION IS
 DETERMINED TO BE IN THE GOVERNMENT'S INTEREST, SUCH DETERMINATION BEING
 WITHIN THE AGENCY'S ADMINISTRATIVE DISCRETION.  AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2272 AND DEPARTMENT OF JUSTICE,
 U.S. MARSHALS SERVICE, DISTRICT OF COLUMBIA, 9 FLRA NO.
 140(1982)(PROPOSAL 10).  THE SHUTTLE BUS SERVICE PROPOSED HEREIN WOULD
 PROVIDE TRANSPORTATION FOR A VARIETY OF PURPOSES, PRINCIPALLY ACCESS TO
 SERVICES OF THE DEPARTMENT OF JUSTICE AND RESEARCH FACILITIES.  UNDER
 THE PROPOSAL, TRANSPORTATION OF EMPLOYEES FROM A POINT BETWEEN THEIR
 HOMES AND THEIR PLACE OF EMPLOYMENT WOULD BE INCIDENT TO THE AUTHORIZED
 USE OF THE SHUTTLE BUS FOR OTHER PURPOSES.  /9/ IF SUCH INCIDENT USE
 WOULD BE WITHIN THE GOVERNMENT'S INTEREST, NEGOTIATION OF THE PROPOSAL,
 CONTRARY TO THE AGENCY'S CONTENTION, WOULD NOT BE INCONSISTENT WITH 31
 U.S.C.  638A(C)(2).  A DETERMINATION AS TO WHETHER A PARTICULAR USE IS
 IN THE GOVERNMENT'S INTEREST IS A MATTER WITHIN AN AGENCY'S
 ADMINISTRATIVE DISCRETION AND, HENCE, SUBJECT TO BARGAINING.  /10/
 
    BASED UPON THE FOREGOING, UNION PROPOSAL 1 IS WITHIN THE DUTY TO
 BARGAIN UNDER SECTION 7117 OF THE STATUTE.
 
                             UNION PROPOSAL 2
 
    IT IS IMPERATIVE THAT MANAGEMENT INFORM THE UNION OF THE PARKING
 FACILITIES AVAILABLE AT
 
    THE PROPOSED NEW LOCATION OF THE BOARD OF IMMIGRATION APPEALS AT THE
 EARLIEST POSSIBLE
 
    TIME.  IF PARKING IS NOT AVAILABLE FOR EVERY PERSON EMPLOYED BY THE
 BOARD, OR IF THERE IS SOME
 
    PARKING WHICH IS MORE DESIRABLE IN TERMS OF LOCATION OR COST, IT IS
 NECESSARY TO ESTABLISH AN
 
    EQUITABLE SYSTEM, SUCH AS ONE BASED ON SENIORITY, FOR DETERMINING
 WHICH PERSONS WILL HAVE
 
    PARKING AVAILABLE TO THEM.  ACCORDINGLY, WE REQUEST TO MEET AND
 NEGOTIATE ON A SYSTEM OF
 
    PARKING SPACE DISTRIBUTION.
 
                             UNION PROPOSAL 3
 
    FOR SEVERAL EMPLOYEES OF THE BOARD, MANY OF WHOM HAVE DEVOTED MANY
 YEARS TO GOVERNMENT
 
    SERVICE AND TO SERVICE IN THE DEPARTMENT OF JUSTICE, THE PROPOSED
 RELOCATION OF THE BOARD TO
 
    SUBURBAN VIRGINIA PRESENTS A DIFFICULT, IF NOT IMPOSSIBLE, TASK IN
 REACHING THEIR PLACE OF
 
    WORK EACH DAY.  WE REQUEST TO MEET AND NEGOTIATE ON RELOCATION OF
 JOBS FOR THESE PERSONS
 
    WITHIN THE DEPARTMENT OF JUSTICE.
 
                             UNION PROPOSAL 4
 
    THE PROPOSED REMOVAL OF THE BOARD FROM THE DISTRICT OF COLUMBIA, A
 "HUB" IN TERMS OF PUBLIC
 
    TRANSPORTATION TO A NORTHERN VIRGINIA SUBURB, MOSTLY INACCESSIBLE
 EXCEPT BY AUTOMOBILE, HAS
 
    THE POTENTIAL OF AN IMPERMISSIBLE IMPACT ON THE RACIAL COMPOSITION OF
 THE BOARD'S
 
    EMPLOYEES.  IT IS APPARENT THAT, AS JOBS OPEN UP IN THE NEW LOCATION
 OF THE BOARD AT BAILEY'S
 
    CROSSROADS, THE MAJORITY OF THE APPLICANTS FOR THOSE JOBS WILL BE
 FROM THE NORTHERN VIRGINIA
 
    AREA, AND WILL, IN ALL PROBABILITY, BE WHITE.  WE REQUEST TO MEET AND
 NEGOTIATE ON THE STEPS
 
    TO BE TAKEN BY THE BOARD IN INSURING THAT THIS POTENTIAL IMPACT WILL
 BE LESSENED BY AGGRESSIVE
 
    AFFIRMATIVE ACTION HIRING.
 
                      QUESTIONS BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSALS 2, 3, AND 4 ARE SUFFICIENTLY
 SPECIFIC AND DELIMITED TO PERMIT THE AUTHORITY TO DETERMINE WHETHER THE
 MATTERS PROPOSED ARE WITHIN THE DUTY TO BARGAIN.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSALS 2, 3, AND 4 ARE NOT
 SUFFICIENTLY SPECIFIC AND DELIMITED TO PERMIT THE AUTHORITY TO RULE ON
 THEIR CONSISTENCY WITH APPLICABLE LAW AND REGULATIONS.  ACCORDINGLY,
 PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, IT
 IS ORDERED THAT THE PETITION FOR REVIEW WITH RESPECT TO PROPOSALS 2, 3
 AND 4 BE, AND IT HEREBY IS, DISMISSED.
 
    REASONS:  UNION PROPOSAL 2 CONCERNS THE ALLOCATION OF PARKING SPACES
 AMONG EMPLOYEES OF THE AGENCY.  PROPOSALS REGARDING THE DISTRIBUTION OF
 PARKING SPACES TO EMPLOYEES IN THE BARGAINING UNIT ARE WITHIN THE DUTY
 TO BARGAIN TO THE EXTENT CONSISTENT WITH APPLICABLE LAWS, RULES, AND
 REGULATIONS.  NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 6 AND INTERNAL
 REVENUE SERVICE, NEW ORLEANS DISTRICT, 3 FLRA 748(1980).  ALTHOUGH THE
 PROPOSAL, IN GENERAL TERMS, SEEKS TO ESTABLISH AN "EQUITABLE SYSTEM" OF
 ALLOCATION, THE ONLY SPECIFIC CRITERION ADVERTED TO FOR SUCH ALLOCATION
 IS A SYSTEM "SUCH AS SENIORITY." SINCE THE AUTHORITY IS UNABLE TO
 ASCERTAIN FROM THE LANGUAGE OF THE PROPOSAL OR THE RECORD AS A WHOLE HOW
 CRITERIA SUCH AS SENIORITY WOULD APPLY UNDER THE PROPOSED SYSTEM, IT IS
 NOT POSSIBLE TO DETERMINE WHETHER THE PROPOSAL IS CONSISTENT WITH
 REQUIREMENTS OF APPLICABLE LAWS AND REGULATIONS.
 
    UNION PROPOSAL 3 ESSENTIALLY CONCERNS RELOCATION WITHIN DOJ FOR THOSE
 PERSONS WHO FIND IT DIFFICULT TO TRAVEL TO THE NEW LOCATION OF THE
 AGENCY.  WITH RESPECT TO BARGAINING UNIT EMPLOYEES WHO ARE ADVERSELY
 AFFECTED BY A CHANGE OF LOCATION, PROPOSALS CONCERNING INITIAL AND
 PRIORITY CONSIDERATION FOR VACANCIES IN THE AGENCY MAY BE WITHIN THE
 DUTY TO BARGAIN;  /11/ HOWEVER, PROPOSALS WHICH MANDATE THE SELECTION OF
 SUCH EMPLOYEES FOR SPECIFIC VACANCIES HAVE BEEN DETERMINED TO BE OUTSIDE
 THE DUTY TO BARGAIN.  /12/ IN THE PRESENT CASE, THE AUTHORITY IS UNABLE
 TO CONCLUDE WHETHER, FROM THE LANGUAGE OF THE PROPOSAL OR THE RECORD AS
 A WHOLE, EITHER PRIORITY CONSIDERATION OR REASSIGNMENT RIGHTS FOR
 AFFECTED EMPLOYEES IS INTENDED.  IN THIS CIRCUMSTANCE, IT IS NOT
 POSSIBLE TO DETERMINE WHETHER THE PROPOSAL IS CONSISTENT WITH APPLICABLE
 LAW OR REGULATIONS.
 
    UNION PROPOSAL 4 GENERALLY SEEKS TO REQUIRE THE AGENCY TO TAKE
 CERTAIN UNSPECIFIED STEPS TOWARD AGGRESSIVE AFFIRMATIVE ACTION HIRING.
 UNDER THE STATUTE, THE AUTHORITY HAS FOUND PROPOSALS CONCERNING CERTAIN
 MATTERS RELATING TO EQUAL EMPLOYMENT OPPORTUNITY TO BE WITHIN THE DUTY
 TO BARGAIN;  /13/ HOWEVER, OTHER PROPOSALS CONCERNING SUCH MATTERS HAVE
 BEEN FOUND TO BE INCONSISTENT WITH THE MANAGEMENT RIGHTS SECTION OF THE
 STATUTE.  /14/ THE AUTHORITY IS UNABLE TO CONCLUDE FROM THE LANGUAGE OF
 UNION PROPOSAL 4 OR FROM THE RECORD AS A WHOLE WHETHER THE INTENT AND
 OPERATIVE EFFECT OF THE PROPOSAL IS TO MANDATE CERTAIN HIRING PRACTICES.
  CONSEQUENTLY, IT IS NOT POSSIBLE TO DETERMINE WHETHER THE PROPOSAL IS
 CONSISTENT WITH APPLICABLE LAW OR REGULATIONS.
 
    IT IS WELL ESTABLISHED THAT A PETITION FOR REVIEW OF A NEGOTIABILITY
 ISSUE WHICH DOES NOT PRESENT A PROPOSAL SUFFICIENTLY SPECIFIC AND
 DELIMITED IN FORM AND CONTENT AS TO PERMIT THE AUTHORITY TO RENDER A
 NEGOTIABILITY DECISION THEREON DOES NOT MEET THE CONDITIONS FOR REVIEW
 SET FORTH IN SECTION 7117 OF THE STATUTE AND SECTION 2424.1 OF THE
 AUTHORITY'S RULES AND REGULATIONS.  ASSOCIATION OF CIVILIAN TECHNICIANS,
 ALABAMA ACT AND STATE OF ALABAMA NATIONAL GUARD, 2 FLRA 313(1979).  AS
 ALREADY DISCUSSED, UNION PROPOSALS 2, 3, AND 4