10:0440(74)NG - AFGE Local 1858 and Army, Army Missile Command, Redstone Arsenal, AL -- 1982 FLRAdec NG



[ v10 p440 ]
10:0440(74)NG
The decision of the Authority follows:


 10 FLRA No. 74
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1858
 Union
 
 and
 
 DEPARTMENT OF THE ARMY, U.S. ARMY
 MISSILE COMMAND, REDSTONE ARSENAL,
 ALABAMA
 Agency
 
                                            Case No. O-NG-389
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE AUTHORITY
 PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), AND PRESENTS ISSUES
 RELATING TO THE NEGOTIABILITY OF FIVE UNION PROPOSALS.  /1/ UPON CAREFUL
 CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES' CONTENTIONS,
 THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
 
                             UNION PROPOSAL 1
 
    SECTION 4 - PRIVATE LIVES VS. OFFICIAL DUTIES.
 
    A.  THE EMPLOYER AGREES THAT IT SHALL NOT PERMIT ANY DISCRIMINATION
 AGAINST ANY EMPLOYEE ON
 
    THE BASIS OF CONDUCT WHICH DOES NOT ADVERSELY AFFECT THE PERFORMANCE
 OF THE EMPLOYEE.
 
    B.  THE EMPLOYER RECOGNIZES THAT RESULTS OF A CIVIL CASE CONCERNING
 AN EMPLOYEE ARE PRIVATE
 
    MATTERS.
 
    C.  THE EMPLOYER RECOGNIZES THAT AN EMPLOYEE'S FINANCIAL OBLIGATIONS
 OR OBLIGATIONS ALLEGED
 
    BY ANY CREDITOR ARE PRIVATE MATTERS.  IN THE EVENT OF A DISPUTE
 BETWEEN AN EMPLOYEE AND A
 
    PRIVATE INDIVIDUAL OR FIRM WITH RESPECT TO AN ALLEGED DEBT OR
 FINANCIAL OBLIGATION, THE
 
    EMPLOYER SHALL NOT TAKE ANY ACTION AGAINST THE EMPLOYEE WHICH IS
 RELATED TO THE ALLEGED OR
 
    REAL DEBT UNLESS DIRECTED BY A COURT.
 
    CONTRARY TO THE AGENCY'S POSITION, PARAGRAPH A OF UNION PROPOSAL 1 IS
 NOT CONCERNED WITH AND, HENCE, IS NOT INCONSISTENT WITH THE AGENCY'S
 RIGHTS TO IMPOSE DISCIPLINE, REMOVE EMPLOYEES, OR MAKE SUITABILITY OR
 FITNESS DETERMINATIONS BASED ON ANY CRIMINAL CONVICTIONS PURSUANT TO
 APPLICABLE LAWS AND REGULATIONS.  RATHER, THE PROPOSAL ONLY WOULD
 PROHIBIT DISCRIMINATION AGAINST EMPLOYEES BASED ON CONDUCT NOT AFFECTING
 JOB PERFORMANCE.  SUCH DISCRIMINATION IS PROHIBITED BY 5 U.S.C.
 2302(B)(10).  /2/ FURTHERMORE, SUCH PROHIBITION UNDER LAW AFFECTS
 CONDITIONS OF EMPLOYMENT AND MAY BE ENFORCED THROUGH THE NEGOTIATED
 GRIEVANCE PROCEDURE UNLESS THE PARTIES EXCLUDE THE MATTER THROUGH
 COLLECTIVE BARGAINING.  NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL
 REVENUE SERVICE, 3 FLRA 693(1980), UNION PROPOSAL II.  THEREFORE, FOR
 THE REASONS DETAILED IN INTERNAL REVENUE SERVICE 3 FLRA 693, 696-9,
 PARAGRAPH A OF UNION PROPOSAL 1 IS WITHIN THE DUTY TO BARGAIN.
 
    WITH RESPECT TO PARAGRAPH B OF THE PROPOSAL, THE AGENCY STATES THAT
 IF THE PROPOSAL MEANS "ONLY THAT INFORMATION PERTAINING TO CIVIL
 LITIGATION IS PRIVILEGED AND WILL BE TREATED AS SUCH BY THE EMPLOYER,"
 IT IS NEGOTIABLE.  THE UNION TACITLY AGREED TO SUCH INTERPRETATION BY
 FILING NO RESPONSE TO THE AGENCY STATEMENT.  THE AUTHORITY THEREFORE
 ADOPTS THE INTERPRETATION STATED BY THE AGENCY AND CONCLUDES THAT ANY
 DISPUTE WITH REGARD TO PARAGRAPH B HAS BEEN RENDERED MOOT.
 
    AS TO PARAGRAPH C, IT IS OUTSIDE THE DUTY TO BARGAIN BECAUSE IT IS
 INCONSISTENT WITH MANAGEMENT'S RIGHT TO TAKE "DISCIPLINARY ACTION"
 AGAINST EMPLOYEES FOR, E.G., FAILURE TO PAY JUST FINANCIAL OBLIGATIONS
 UNDER SECTION 7106(A)(2)(A) OF THE STATUTE.  IN THIS CONNECTION, 5 CFR
 735.207(1982) REQUIRES THAT, "AN EMPLOYEE SHALL PAY EACH JUST FINANCIAL
 OBLIGATION IN A PROPER AND TIMELY MANNER . . . . " FURTHER, 5 CFR
 735.107 MANDATES THAT AGENCY REGULATIONS GOVERNING EMPLOYEE CONDUCT,
 WHICH INCLUDES INDEBTEDNESS, " . . . SHALL PROVIDE THAT A VIOLATION OF
 THE AGENCY REGULATIONS BY AN EMPLOYEE . . . MAY BE CAUSE FOR APPROPRIATE
 DISCIPLINARY ACTION WHICH MAY BE IN ADDITION TO ANY PENALTY PRESCRIBED
 BY LAW." CONSEQUENTLY, AS THE PROPOSAL WOULD PREVENT MANAGEMENT FROM
 ENFORCING ITS REGULATIONS GOVERNING INDEBTEDNESS BY TAKING "APPROPRIATE
 DISCIPLINARY ACTION" UNLESS DIRECTED TO DO SO BY A COURT, IT IS
 INCONSISTENT WITH SECTION 7106(A)(2)(A) AND IS OUTSIDE THE DUTY TO
 BARGAIN.
 
                             UNION PROPOSAL 2
 
    SECTION 16 - SUPERVISION AND ASSIGNMENT OF WORK.
 
    CONSISTENT WITH THE MANAGEMENT RIGHT TO ASSIGN WORK TO EMPLOYEES AND
 TO DETERMINE METHODS
 
    AND MEANS OF PERFORMING WORK, EMPLOYEES CAN EXPECT ASSIGNMENTS TO BE
 MADE WITHIN REASONABLE
 
    BOUNDS, CONSISTENT WITH GRADE LEVEL, POSITION DESCRIPTION AND
 PERFORMANCE.  EMPLOYEES WILL
 
    RECEIVE INSTRUCTIONS FROM AND MAKE REPORTS THROUGH ESTABLISHED
 SUPERVISORY CHANNELS AS
 
    DESCRIBED OR DEPICTED IN PERTINENT POSITION DESCRIPTIONS.  THE
 IMMEDIATE SUPERVISOR SHALL BE
 
    RESPONSIBLE FOR ALL ASSIGNMENTS TO THE EMPLOYEE AND FOR MAKING
 APPRAISALS OF THE EMPLOYEE'S
 
    WORK.
 
    CONTRARY TO THE CONTENTIONS OF THE AGENCY, THE FIRST SENTENCE OF
 UNION PROPOSAL 2 IS NOT INCONSISTENT WITH THE RIGHT, UNDER SECTION
 7106(A)(2)(B) OF THE STATUTE, "TO ASSIGN WORK." RATHER, THE NET EFFECT
 OF THAT SENTENCE WOULD BE TO REQUIRE ONLY THAT, AS A GENERAL MATTER,
 WORK ASSIGNMENTS WILL BE MADE IN A MANNER WHICH IS REFLECTIVE OF THE
 EMPLOYEE'S GRADE LEVEL AND PERFORMANCE REQUIREMENTS.  THUS, THE FIRST
 SENTENCE IS WITHIN THE DUTY TO BARGAIN.  CF. AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE
 SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW JERSEY, 2 FLRA 153(1979),
 ENFORCED SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS
 AUTHORITY, 659 F.2D 1140 (D.C. CIR. 1981), CERT. DENIED SUB NOM. AFGE V.
 FLRA . . . , U.S. . . . , 102 S.CT. 1443(1982).  (PROPOSAL REQUIRING
 POSITION DESCRIPTIONS TO REFLECT ACCURATELY DUTIES REGULARLY ASSIGNED TO
 EMPLOYEES IS WITHIN THE DUTY TO BARGAIN.)
 
    IN LIKE MANNER, THE SECOND SENTENCE OF THIS PROPOSAL MERELY WOULD
 REQUIRE THAT MANAGEMENT ACCURATELY DEPICT IN EMPLOYEE POSITION
 DESCRIPTIONS THE "SUPERVISORY CHANNELS" WHICH IT HAS ESTABLISHED.  OF
 COURSE, SHOULD MANAGEMENT WISH TO REVISE ITS SUPERVISORY STRUCTURE, THE
 SECOND SENTENCE OF THE PROPOSAL WOULD NOT PREVENT SUCH REVISION.
 MANAGEMENT ONLY WOULD BE OBLIGATED BY THE PROPOSAL TO REFLECT SUCH
 MODIFICATIONS IN POSITION DESCRIPTIONS, AS APPLICABLE.  ACCORDINGLY, THE
 SECOND SENTENCE OF THE PROPOSAL IS ALSO NEGOTIABLE.
 
    BY CONTRAST, THE THIRD SENTENCE OF UNION PROPOSAL 2 SPECIFIES WHICH
 PERSONNEL WITHIN THE AGENCY WILL PROVIDE INSTRUCTIONS AND WORK
 ASSIGNMENTS TO, AND EVALUATE THE WORK PERFORMANCE OF, BARGAINING UNIT
 EMPLOYEES.  THUS, THIS WOULD IMPLICITLY PREVENT ASSIGNING THOSE
 FUNCTIONS TO OTHER PERSONNEL AND, IN THIS REGARD, IS NOT MATERIALLY
 DIFFERENT FROM SECTION 8 OF THE UNION PROPOSAL BEFORE THE AUTHORITY IN
 CONGRESSIONAL RESEARCH EMPLOYEES ASSOCIATION AND THE LIBRARY OF
 CONGRESS, 3 FLRA 737(1980).  (PROPOSAL WHICH ASSIGNED SPECIFIC DUTIES TO
 PARTICULAR POSITIONS IS HELD OUTSIDE THE DUTY TO BARGAIN.) FOR THE
 REASONS DETAILED IN THAT DECISION, THE AUTHORITY FINDS THE THIRD
 SENTENCE OF UNION PROPOSAL 2 HEREIN IS OUTSIDE THE DUTY TO BARGAIN, IN
 THAT IT IS INCONSISTENT WITH MANAGEMENT'S RIGHT "TO ASSIGN WORK" UNDER
 SECTION 7106(A)(2)(B) OF THE STATUTE.
 
                             UNION PROPOSAL 3
 
    SECTION 19 - SERVICES FOR VISUALLY HANDICAPPED AND/OR DEAF EMPLOYEES.
 
    A.  QUALIFIED READERS AND INTERPRETERS FOR HANDICAPPED EMPLOYEES.
 THE DEPARTMENT SHALL
 
    MAINTAIN A QUALIFIED EMPLOYEE WHO WILL INTERPRET FOR DEAF EMPLOYEES
 OR READ FOR VISUALLY
 
    HANDICAPPED EMPLOYEES WHEN NEEDED TO ASSIST IN THE ACCOMPLISHMENT OF
 OFFICIAL WORK.
 
    B.  TAPED DOCUMENTS.  THE DEPARTMENT SHALL MAINTAIN AND PROVIDE, FOR
 THE USE OF VISUALLY
 
    HANDICAPPED EMPLOYEES, TAPED COPIES OF:
 
    (1) THIS AGREEMENT, AND
 
    (2) REGULATIONS AND OTHER DOCUMENTS NEEDED BY VISUALLY HANDICAPPED
 EMPLOYEES IN THEIR JOB.
 
    C.  TELETYPEWRITER FOR DEAF EMPLOYEES.  THE EMPLOYER AGREES TO
 PURCHASE AND INSTALL A
 
    TELETYPEWRITER IN BUILDINGS WHERE THERE ARE DEAF EMPLOYEES, FOR THOSE
 EMPLOYEES' USE.  (ONLY
 
    PARAGRAPH B(1) OF THIS PROPOSAL IS NOT IN DISPUTE.)
 
    IN AGREEMENT WITH THE AGENCY, THE AUTHORITY FINDS THAT PARAGRAPH A OF
 UNION PROPOSAL 3 WOULD REQUIRE THE AGENCY TO HIRE OR ASSIGN AN EMPLOYEE
 WITH SPECIFIED QUALIFICATIONS.  SUCH A REQUIREMENT IS INCONSISTENT WITH
 THE DISCRETION INHERENT IN MANAGEMENT'S RIGHT UNDER SECTION
 7106(A)(2)(A) "TO HIRE" AND "ASSIGN" EMPLOYEES OR TO DECIDE NOT TO TAKE
 SUCH ACTIONS.  ACCORDINGLY, PARAGRAPH A IS OUTSIDE THE DUTY TO BARGAIN.
 
    IN FURTHER AGREEMENT WITH THE AGENCY, THE AUTHORITY FINDS THAT
 PARAGRAPHS B AND C OF UNION PROPOSAL 3, BY REQUIRING THE ACQUISITION
 AND/OR USE OF CERTAIN TAPED DOCUMENTS AND TELETYPEWRITER EQUIPMENT,
 CLEARLY CONCERN THE "TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK"
 WITHIN THE MEANING OF SECTION 7106(B)(1) OF THE STATUTE.  SEE NATIONAL
 TREASURY EMPLOYEES UNION AND U.S. CUSTOMS SERVICE REGION VIII, SAN
 FRANCISCO, CALIFORNIA, 2 FLRA 255(1979);  AND AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1917 AND U.S.  DEPARTMENT OF
 JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, NEW YORK CITY DISTRICT
 OFFICE, 4 FLRA NO.  25(1980).  UNDER SECTION 7106(B)(1) SUCH MATTERS ARE
 NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY.  HENCE, IN LIGHT OF THE
 AGENCY'S ELECTION NOT TO BARGAIN, PARAGRAPHS B AND C ARE NONNEGOTIABLE.
 
                             UNION PROPOSAL 4
 
    SECTION 20 - PROHIBITED INVESTIGATIVE TECHNIQUES.
 
    A.  THE USE OF INVESTIGATIVE METHODS EMPLOYING EQUIPMENT SUCH AS
 ELECTRICAL, ELECTRONIC,
 
    OPTICAL, CHEMICAL, OR MECHANICAL SURVEILLANCE DEVICES SHALL BE
 PROHIBITED EXCEPT FOR NATIONAL
 
    SECURITY PURPOSES.  IN THE EVENT THAT THESE DEVICES ARE USED FOR
 NATIONAL SECURITY PURPOSES,
 
    THEIR USE SHALL BE IN ACCORDANCE WITH LAW AND GOVERNMENTWIDE
 REGULATIONS.  ANY INCIDENTAL
 
    INFORMATION OBTAINED DURING A SECURITY INVESTIGATION THAT IS
 UNRELATED TO NATIONAL SECURITY
 
    SHALL BE VOID AND SHALL NOT BE USED TO INTIMIDATE, COERCE, HARASS, OR
 TO INITIATE LEGAL OR
 
    CRIMINAL COURT ACTION AGAINST ANY EMPLOYEE OR GROUP OF EMPLOYEES.
 ANY INFORMATION OBTAINED
 
    DURING A SECURITY INVESTIGATION, UNRELATED TO NATIONAL SECURITY,
 SHALL BE IMMEDIATELY
 
    DESTROYED.
 
    B. THE USE OF INVESTIGATION DEVICES SUCH AS THE POLYGRAPH OR THE
 VOICE-STRESS-ANALYZER OR
 
    ANY DEVICE OR EQUIPMENT THAT MONITORS (FOR OPERATOR INTERPRETATION)
 THE PHYSIOLOGICAL FOR
 
    PHYSIOLOGICAL REACTIONS OF THE HUMAN BODY, SHALL BE PROHIBITED IN ANY
 CASE.
 
    THE AGENCY INDICATES WITHOUT CONTROVERSION THAT THE INVESTIGATIVE
 TECHNIQUES WHICH THE PROPOSAL WOULD PROHIBIT ARE PART OF THE "INTERNAL
 SECURITY PRACTICES" ADOPTED TO SAFEGUARD AGENCY PERSONNEL AND PROPERTY,
 AS WELL AS THE NATIONAL SECURITY.  CONSEQUENTLY, IN THE ABSENCE OF ANY
 UNION ARGUMENT TO THE CONTRARY, THE AUTHORITY FINDS, IN AGREEMENT WITH
 THE AGENCY, THAT THE UNION'S PROPOSAL THEREBY INTERFERES WITH THE
 AGENCY'S ESTABLISHMENT OF "INTERNAL SECURITY PRACTICES" UNDER SECTION
 7106(A)(1) OF THE STATUTE AND IS OUTSIDE THE DUTY TO BARGAIN.  SEE
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL
 IMMIGRATION AND NATURALIZATION SERVICE COUNCIL AND U.S. DEPARTMENT OF
 JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, 8 FLRA NO. 75(1982)
 (PROPOSAL 8).
 
                             UNION PROPOSAL 5
 
    SECTION 21 - COMPLIANCE WITH INTERNAL REGULATIONS.
 
    THE EMPLOYER SHALL ABIDE BY HIS OWN INTERNAL REGULATIONS.  ANY
 COMPLAINT BY AN EMPLOYEE OF
 
    THE BARGAINING UNIT THAT THE EMPLOYER HAS FAILED TO FOLLOW HIS OWN
 INTERNAL REGULATIONS, IF
 
    SUBSTANTIATED BY THE EVIDENCE SUBMITTED SHALL RESULT IN THE EFFECTING
 OF THE CORRECTIVE ACTION
 
    REQUESTED BY THE EMPLOYEE.  FAILURE BY THE EMPLOYER TO DO SO SHALL
 CONSTITUTE PRIMA FACIE
 
    EVIDENCE OF THE EMPLOYERS' (SIC) INTENT TO CIRCUMSCRIBE (SIC) THE
 REGULATION(S).
 
    IN AGREEMENT WITH THE AGENCY, AND IN THE ABSENCE OF ANY EXPLANATION
 AS TO THE MEANING OF ITS PROPOSAL BY THE UNION, THE AUTHORITY FINDS THAT
 THE PURPOSE AND EFFECT OF THE PROPOSED LANGUAGE IS NOT SUFFICIENTLY
 CLEAR TO PERMIT A DETERMINATION AS TO WHETHER ITS NEGOTIATION WOULD BE
 CONSISTENT WITH APPLICABLE LAWS AND REGULATIONS.  CONSEQUENTLY, UNION
 PROPOSAL 5 IS NOT SUFFICIENTLY SPECIFIC AND DELIMITED TO PROVIDE THE
 AUTHORITY WITH A BASIS UPON WHICH TO DETERMINE ITS NEGOTIABILITY.  SEE
 ASSOCIATION OF CIVILIAN TECHNICIANS, ALABAMA ACT AND STATE OF ALABAMA
 NATIONAL GUARD, 2 FLRA 314(1979).
 
    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 CONCERNING PARAGRAPH A OF
 UNION PROPOSAL 1 AND THE FIRST AND SECOND SENTENCES OF UNION PROPOSAL 2.
  /3/ IT IS FURTHER ORDERED THAT THE UNION'S PETITION FOR REVIEW AS TO
 PARAGRAPHS B AND C OF UNION PROPOSAL 1, THE THIRD SENTENCE OF UNION
 PROPOSAL 2, AND UNION PROPOSALS 3, 4 AND 5 BE, AND IT HEREBY IS,
 DISMISSED.
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 4, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ DURING THE PENDENCY OF THIS CASE, THE AGENCY WITHDREW ITS
 ALLEGATION OF NONNEGOTIABILITY WITH RESPECT TO A SIXTH PROPOSAL
 CONCERNING USE OF AUDIO DEVICES.  THE ISSUE AS TO THAT PROPOSAL WAS
 THEREFORE RENDERED MOOT.
 
    /2/ 5 U.S.C. 2302(B)(10) PROVIDES:
 
    SEC. 2302.  PROHIBITED PERSONNEL PRACTICES
 
   *          *          *          *
 
 
    (B) ANY EMPLOYEE WHO HAS AUTHORITY TO TAKE, DIRECT OTHERS TO TAKE,
 RECOMMEND, OR APPROVE
 
    ANY PERSONNEL ACTION, SHALL NOT, WITH RESPECT TO SUCH AUTHORITY--
 
   *          *          *