17:0752(104)NG - AFGE Local l770 and Army, HQ, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC -- 1985 FLRAdec NG



[ v17 p752 ]
17:0752(104)NG
The decision of the Authority follows:


 17 FLRA No. 104
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 1770
 Union 
 
 and 
 
 DEPARTMENT OF THE ARMY, 
 HEADQUARTERS, XVIII AIRBORNE 
 CORPS AND FORT BRAGG, 
 FORT BRAGG, NORTH CAROLINA 
 Agency
 
                                            Case No. O-NG-863
 
                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
 concerning the negotiability of five Union proposals.  Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
 
                             Union Proposal 1
 
          B.  ARTICLE EIGHT, SECTION FIFTEEN
 
          The Employer shall designate trained Federal Women's Program
       members who will be available to employees.  Federal Women's
       Program members will be knowledgeable of the application of EEO
       Regulations and other related procedures.  Candidates must meet
       the criteria established by the Office of the Federal Women's
       Program, OPM (Office of Personnel Management).  The Union may
       nominate individuals to serve as FWP members.  The Union shall
       have representation and input in the activities of the Federal
       Women's Program membership and/or equal representation on
       established FWP Committees.
 
                             Union Proposal 2
 
          C. ARTICLE EIGHT, SECTION SIXTEEN
 
          The Employer agrees to designate trained coordinators for the
       Hispanic program who will develop and provide special outreach for
       equal opportunity for Hispanic employees.  Hispanic coordinators
       will be knowledgeable of the application of EEO Regulations and
       other related procedures.  Candidates must meet the criteria
       established by the Office of the Hispanic Program, EEOC (Equal
       Employment Opportunity Commission).  The Union may nominate
       individuals to serve as Hispanic Program Coordinators.  The Union
       shall have representation and input in the activities of the
       Hispanic program, coordinators and/or equal representation on
       established Hispanic Committee(s).
 
          (The underlined portions of these two proposals are in
       dispute.)
 
    The Agency contends that the disputed parts of Union Proposals 1 and
 2, by prescribing the qualifications criteria for coordinator positions,
 fall within the ambit of section 7106(b)(1) of the Statute in that they
 affect the types and grades of employees or positions assigned as
 program coordinators.  The Union asserts that the proposals do not have
 the effect suggested by the Agency.  That is, the proposals leave
 management with "full discretion to determine what a 'trained'
 individual means," /1/ and there are no restrictions "which would
 operate to include or exclude particular individuals or groups in the
 employer's selection" of program coordinators.  /2/ Moreover, the Union
 states, the proposals would not, contrary to the Agency's
 interpretation, prohibit appointment of interns or trainees to the
 positions.
 
    The Union's position is unpersuasive in that it is at odds with the
 plain language of the proposals.  The proposals require the designation
 of "trained" coordinators.  While the proposals do not stipulate the
 specific courses that the coordinators must have completed, it is clear
 from the context that the training should have made the appointees
 "knowledgeable of the application of EEO Regulations and other related
 procedures." Further, the proposals would require that appointees meet
 certain specified criteria.  In view of the language of the proposals,
 the Authority will not base its determination on the Union's explanation
 of the proposals.  American Federation of Government Employees, AFL-CIO,
 Local 2955 and National Guard Bureau, Office of the Adjutant General,
 Des Moines, Iowa, 5 FLRA 617 (1981).  Consequently, the Authority
 concludes that Union Proposals 1 and 2 are to the same effect as the
 proposals which were before the Authority in National Federation of
 Federal Employees, Local 1332 and U.S. Army Materiel Development and
 Readiness Command (DARCOM), 3 FLRA 200 (1980) which sought to prescribe
 the training, experience, and qualifications to be possessed by alcohol
 and drug abuse counselors.  The proposals in that case were found to be
 determinative of the "types" of employees who could fill counselor
 positions and therefore were held to be negotiable only at management's
 election pursuant to section 7106(b)(1) of the Statute.  Hence, based on
 Army Materiel Development and Readiness Command, and the reasons stated
 therein, Union Proposals 1 and 2 are not within the duty to bargain
 since the Agency has elected not to bargain over them.
 
                             Union Proposal 3
 
          L.  ARTICLE TWENTY SEVEN, ACTIONS BASED UPON INSTANCES OF
       DISCOURTESY TO THE PUBLIC
 
          The Employer agrees that Unit employees will be protected
       against arbitrary and malicious assertions of discourtesy by
       members of the public through careful and judicious consideration
       of such assertions, to include a thorough investigation of facts
       surrounding individual instances prior to taking action to
       document the occurrence.
 
          Employees will be entitled to review any written record or
       complaint concerning an asserted incident of discourtesy and may
       provide a written statement concerning any incident.
 
          In cases where the employee disagrees with an instance of
       asserted discourtesy, he may file a grievance to correct the facts
       alleged.
 
          The Employer agrees that any assertion(s) of discourtesy not
       made with specificity or within 24 hours of any event will not be
       a basis for action against an employee.
 
          The Employer recognizes that, on occasion, members of the
       public may perceive an employee's legitimate exercise of duty
       responsibility as a personal affront.
 
          In cases where the employee shows his actions to be taken under
       supervisory direction or based upon operating procedures, no
       action will be taken by the Employer.  (The underlined portion of
       the proposal is in dispute.)
 
    In explaining the intent of Union Proposal 3, the Union states that,
 in order to be a basis for disciplinary action against an employee, the
 employee must be advised of his or her alleged discourteous conduct
 within 24 hours of the time that management becomes aware of the event.
 /3/ The Agency asserts that the explanation is not consistent with the
 text of the proposal, in that the 24 hour period prescribed by the
 proposal commences with occurrence of the event, not from the time the
 alleged discourtesy comes to management's attention.  However, a choice
 between these two interpretations is not necessary in reaching a
 negotiability determination.
 
    Under either interpretation, the effect of the disputed part of Union
 Proposal 3 is to establish a contractual "statute of limitations,"
 which, if exceeded, would preclude the imposition of discipline for
 discourtesy.  In this respect, the disputed part is to the same effect
 as Provision 2 in National Federation of Federal Employees, Local 615
 and National Park Service, Sequoia and Kings Canyon National Parks, U.S.
 Department of Interior, 17 FLRA No. 45 (1985) which set a 60 day time
 limit upon the initiation of investigations of incidents which may lead
 to disciplinary actions.  The Authority noted that "in many situations
 investigations are the essential first step to disciplinary action and
 preventing the initiation of investigations, as would Provision 2 upon
 expiration of the prescribed period of time, effectively precludes the
 imposition of discipline." (Footnote omitted.) Thus, the Authority found
 the provision to be inconsistent with management's right to discipline
 employees, pursuant to section 7106(a)(2)(A) of the Statute, by, in
 certain circumstances, preventing the Agency from acting at all with
 respect to that right.  In like manner, the disputed part of Union
 Proposal 3 would prevent the Agency from imposing discipline for
 discourtesy in certain circumstances.  /4/ Consequently, based on
 National Park Service and the reasons and case cited therein, the
 disputed part of Union Proposal 3 is also inconsistent with the
 management right to impose discipline and is outside the duty to
 bargain.
 
                             Union Proposal 4
 
          O.  ARTICLE FORTY SIX, SECTION FOUR
 
          The Employer shall make an effort to protect employees against
       thefts or (sic) personal property at the work place. This will
       include providing lockers or other secure area(s) for employees to
       store personal items during working hours.
 
    The Agency asserts that Union Proposal 4 is not materially different
 from the proposal which the Authority found to be outside the duty to
 bargain in 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 150 (1980).  /5/ The
 proposal in the cited case would have required management to provide
 secure storage areas for unit employees' private weapons, "which are
 neither required nor permitted to be used in the performance of such
 employees' official duties." Contrary to the Agency's position, however,
 the disputed proposal herein is distinguishable from the one cited by
 the Agency.  Union Proposal 4 concerns items employees would normally be
 expected to bring with them to work, e.g., wallets, purses, and lunches.
  Indeed, some of the items may be necessary for the employees to reach
 their work locations, in that wallets or purses would contain drivers'
 licenses, money for transportation and purchase of food, and
 identification credentials.  In this respect, Union Proposal 4 is more
 closely related to Union Proposal XVI in American Federation of State,
 County and Municipal Employees, AFL-CIO, Local 2477, et al., and Library
 of Congress, Washington, D.C., 7 FLRA 578 (1982) enforced sub nom.
 Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983) which
 required management to provide showers and lockers for certain
 employees.  The Authority determined that the proposal was within the
 duty to bargain because it "would be merely incidental to the
 performance of the Agency's work and would be principally related to
 matters affecting the working conditions of these (employees)." Hence,
 based on Library of Congress, and the reasons stated therein, Union
 Proposal 4 is within the duty to bargain.  /6/
 
    As to the Agency's additional argument that the proposal concerns the
 technology of performing work, within the meaning of section 7106(b)(1)
 of the Statute, to the extent that it is intended to require provision
 of security storage areas for official uniforms, it is noted that the
 proposal itself does not address this matter.  As the Union points out,
 since the proposal only concerns storage facilities for personal items,
 "(s)hould official uniforms for the employees constitute the technology
 of work and the employer choose to (prescribe) the maintenance of
 official uniforms in the lockers or other secure areas, it would be free
 to do so under the union's proposal." /7/ The proposal, therefore does
 not concern the technology of performing work in the manner suggested by
 the Agency.
 
                             Union Proposal 5
 
          R.  ARTICLE FORTY SIX, SECTION FOURTEEN
 
          Unit employees who are required to spend time traveling shall
       be compensated for such travel time as hours of work if:
 
          (a) The employee is required to travel during working hours.
 
          (b) The employee is required to drive a vehicle or perform
       other work while traveling.
 
          (c) The employee is required to travel as a passenger on an
       one-day assignment away from his official duty station;  or
 
          (d) The employee is required to travel as a passenger on an
       overnight assignment away from his official duty station during
       hours on non-workdays that correspond to the employees' regular
       working hours.
 
          Unit employees will only be scheduled for travel during their
       regular duty hours and/or duty days.  /8/ (The underscored portion
       of the proposal remains in dispute.  Footnote added.)
 
    In American Federation of Government Employees, AFL-CIO, Local 3424
 and Federal Home Loan Bank Board, San Francisco, California, 14 FLRA 79
 (1984) the Authority concluded that Union Proposal 1, therein, which
 required that the agency grant a maximum amount of duty time for
 traveling from an employee's temporary duty location to his or her
 residence in certain circumstances, interfered with the management
 right, pursuant to section 7106(a)(2)(B) of the Statute, to assign work
 by reducing the time frame in which work could be assigned.  The
 Authority noted in that decision (n.1) that management is required to
 exercise its rights under section 7106(a)(2)(B) in a manner consistent
 with law.  Citing the requirement in 5 U.S.C. 6101(b)(2) that an agency
 arrange travel during the scheduled workweek "to the maximum extent
 practicable," the Authority determined that the proposal nonetheless
 interfered with the right to assign work because it "would require
 travel during the scheduled workweek even where not practicable." In
 like manner Union Proposal 5, herein, with its flat prohibition of
 travel outside regular hours and days of work, interferes with the
 Agency's right to assign work and, consequently, is outside the duty to
 bargain.
 
    Accordingly pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review as it relates to
 Union Proposals 1, 2, 3 and 5 be, and it hereby is, dismissed.  IT IS
 FURTHER ORDERED that the Agency shall upon request (or as otherwise
 agreed to by the parties) bargain concerning Union Proposal 4.  Issued,
 Washington, D.C., April 24, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Union Reply Brief at 2.
 
 
    /2/ Id. at 3.
 
 
    /3/ Petition for Review at 2.
 
 
    /4/ In this connection, it is noted that 5 U.S.C. 7503(a)
 specifically provides that empl