19:0778(95)NG - AFGE Local 2302 and Army Armor Center and Fort Knox, Fort Knox, KY -- 1985 FLRAdec NG



[ v19 p778 ]
19:0778(95)NG
The decision of the Authority follows:


 19 FLRA No. 95
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2302
 Union
 
 and
 
 U.S. ARMY ARMOR CENTER
 AND FORT KNOX,
 FORT KNOX, KENTUCKY
 Agency
 
                                            Case No. O-NG-546
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents issues
 relating to the negotiability of the following eight Union proposals.
 Upon careful consideration of the entire record, including the parties'
 contentions, the Authority makes the following determinations.  /1/
 
                             Union Proposal 1
 
          It is agreed that the Employer may suspend and/or (revoke) a(n)
       employee(')s right to operate his/her P.O.V. on Fort Knox for one
       or more of the reasons as set out in Appendix A of this Article,
       using the due process procedure of said Appendix.
 
                                APPENDIX A
 
                FORT KNOX MOTOR VEHICLE TRAFFIC REGULATION
 
          Section 1.  It is agreed that the Employer shall use these
       procedures when suspending or (revoking) a bargaining unit
       employee's right to operate his/her P.O.V. on Fort Knox.
 
          Section 2.  It is agreed that Table 6-1 of C-1-AR-190-5, dated
       May 31, 1974, shall be used to determine what traffic violation
       may be considered just cause for suspension or revocation.
 
          Section 3.  Due Process Procedures
 
          A. It is agreed that suspensions or revocations (are) a severe
       (administrative) measure to be exercised only for serious moving
       violations and then only when other available corrective actions
       fail to produce the desired driver improvement.
 
          (i) It is agreed that no unit employee's right to drive shall
       be so limited that said employee could not drive to his place of
       employment.
 
          B.  Suspensions or revocations shall not become effective until
       after the following is completed, with:
 
          (i) The Post Commander serve notice upon the affected person in
       writing, of a pending action.
 
          (ii) A(n) (administrative) hearing is held
 
          (a) the affected employee can have Union representation,
 
          (b) the employee and his representative may cross-examine all
       interested parties to include the Post Commander.
 
          (c) at least thirty (30) work days to prepare for said hearing.
 
          (iii) A stay of pending suspension or revocation until after
       the procedures of Articles . . . , . . . are completed.
 
    Section 3(A) of this proposal would effectively limit the Agency's
 ability to impose suspensions and revocations of driving privileges
 under the circumstances specified therein.  The Authority has found that
 the imposition of a penalty by an agency because an employee has engaged
 in a traffic violation under circumstances where there is a nexus
 between the violation and the employee's job is a disciplinary action
 within the meaning of section 7106(a)(2) of the Statute.  National
 Federation of Federal Employees, Local 1363 and U.S. Army Garrison,
 Yongsan, Korea, 15 FLRA No. 25 (1984).  The proposal in this case
 relates to penalties to be imposed as a consequence of infractions which
 occur while the employee is operating a vehicle on the Agency's premises
 and makes no distinction as to whether such infractions occur while the
 employee involved is on or off duty.  Thus, the Authority finds that a
 nexus exists between the penalties and the employee's job.  Thus, the
 penalties to which section 3(A) of this proposal refer constitute
 disciplinary actions under section 7106(a)(2) of the Statute.  Cf.
 National Treasury Employees Union and NTEU Chapter 70 and Department of
 the Treasury, Internal Revenue Service, Atlanta Service Center, Georgia,
 8 FLRA 37 (1982) (Union Proposal 5) (wherein the Authority found that a
 proposal requiring discussion with the Union prior to imposition of
 penalties regarding suspension of parking privileges did not prevent the
 Agency from acting at all with respect to disciplining employees).
 Moreover, the Authority notes that section 3(A) would expressly place a
 substantive restriction on the Agency's discretion to impose such
 disciplinary actions.  In this regard, it would require that lesser
 actions be imposed as a prerequisite to revocation or suspension of
 driving privileges and would prohibit such actions when they would
 result in an employee being unable to "drive to his place of
 employment." Thus, the proposal directly interferes with a management
 right under section 7106(a)(2)(A) of the Statute and does not constitute
 a procedure within the meaning of section 7106(b)(2) of the Statute.
 See National Labor Relations Board Union and National Labor Relations
 Board, Office of the General Counsel, 18 FLRA No. 42 (1985);  Cf. IRS,
 Atlanta, Service Center, 8 FLRA 37 (wherein the Authority in finding
 Union Proposal 5, therein, within the duty to bargain noted that it did
 not limit the penalties which the agency might impose).  It is,
 therefore, not within the duty to bargain.
 
                             Union Proposal 2
 
          It is agreed that if the need to stop a unit employee at the
       entrance gate for internal security reasons, the following
       procedures shall prevail.
 
          (I) The entrance gate guard will courteously explain to the
       employee why he/she is being stopped, and
 
          (II) Give the employee his full name and badge number.
 
          (III) If the employee reasonably believes that the gate guard
       was acting improper(ly), the employee may request that the Provost
       Marshall (sic) and the Union be informed and that the employee,
       P.M., and the Union will meet within five (5) days to resolve the
       problem.
 
          (IV) At no time shall the gate guards have any rights to
       enforce any law, rule, regulation other than the ones pertaining
       to the entrance on Post.
 
          (V) The Employer agrees that any time spent at the entrance
       gate the employee shall be carried in the duty status and be paid
       appropriately.
 
    The Agency contends that Union Proposal 2 is not within the duty to
 bargain because it conflicts with management's right to determine
 internal security practices and to assign work.  Additionally, the
 Agency asserts that, inasmuch as the gate guards are either military
 policemen or contractor personnel, the proposal deals only with
 non-bargaining unit employees.
 
    Union Proposal 2 would, among other things, prohibit the assignment
 of certain duties to gate guards, i.e., duties relating to enforcement
 of laws, rules and regulations other than those pertaining to entrances
 onto the Post.  The Authority has found that proposals which would
 preclude an agency from assigning specified duties violate management's
 right under section 7106(a)(2)(B) to assign work.  International
 Association of Fire Fighters, Local F-61 and Philadelphia Naval
 Shipyard, 3 FLRA 438 (1981) (Union Proposal 1);  National Association of
 Air Traffic Specialists and Department of Transportation, Federal
 Aviation Administration, 6 FLRA 588 (1981) (Union Proposal 6);
 International Organization of Masters, Mates and Pilots and Panama Canal
 Commission, 13 FLRA 508 (1983) (Union Proposal 22);  National Federation
 of Federal Employees, Local 1622 and Department of the Army, Vint Hill
 Farms Station, Warrenton, Virginia, 16 FLRA No. 82 (1984) (Union
 Proposal 2).  Inasmuch as the proposal would restrict the Agency's
 ability to assign duties to the gate guards, it conflicts with section
 7106(a)(2)(B) of the Statute and is not within the duty to bargain.
 
                             Union Proposal 3
 
          It is agreed that the Employer may impound or escort off the
       reservation any unit employee's P.O.V. that is used as an
       instrument of crime, reported stolen, abandoned (for over 10
       days), mechanically unfit to the point where it could cause damage
       to life or limb, or if the driver is unable to operate said P.O.V.
       for any reason.
 
    Union Proposal 3, by its plain terms, would specify those
 circumstances under which the Agency could impound a unit employee's
 Privately Owned Vehicle (POV) or escort it off the reservation.  The
 Agency has asserted that several of the proposals which are the subject
 of this petition, although not specifically Union Proposal 3, interfere
 with its right pursuant to section 7106(a)(1) of the Statute to
 determine its internal security practices.  In this regard, it maintains
 that one purpose of its traffic supervision program is to safeguard its
 property from damage and destruction.  Moreover, in regard to the
 importance of traffic supervision on military installations, the Agency
 has pointed out that military installations have special considerations
 as a consequence of the presence of munitions, hazardous materials, high
 density areas, airfield and military training operations and mission
 essential resources.
 
    An agency's right to determine its internal security practices
 includes the right to determine policies and actions which are part of
 its plan to secure or safeguard its physical property against internal
 or external risks.  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 347 (1982) at 362, reversed as to other matters sub nom. Department
 of Justice v. FLRA, 709 F.2d 724 (D.C. Cir. 1983).  In the Authority's
 view, actions to control or remove from its premises vehicles which may
 pose a threat to its property clearly is a matter directly relating to
 the internal security practices of the Agency.  Moreover, the discretion
 to determine under what circumstances removal or control is warranted is
 an integral part of such action.  Union Proposal 3, by specifying the
 circumstances under which such action may be undertaken directly
 interferes with the Agency's discretion to make substantive decisions in
 this regard, and hence, conflicts with its right to determine its
 internal security practices.  Therefore, Union Proposal 3 is not within
 the duty to bargain.
 
                             Union Proposal 4
 
          The Employer agrees that the driver records of the employee of
       the unit shall be maintained by the Post Provost Marshall's (sic)
       office in the following manner.
 
          (a) Said records shall be kept locked and secured at all times.
 
          (b) Any entry that is to be made in said records shall be
       furnished to the (a)ffected employee within five (5) working days
       of posting.
 
          (c) No information on said record shall be furnished any other
       persons (except the employee or the PM) without written consent of
       the employee.
 
          (d) Only the following information shall be recorded on said
       records:
 
          (I) Chargeable motor vehicle traffic accident when a unit
       (employee) is operating a Government vehicle.
 
          (II) Moving violations-- when a unit employee is operating a
       Government vehicle.
 
          (III) Suspension or revocation action when a unit employee is
       operating a Government vehicle.
 
          (IV) Point Assessments when a unit employee is operating a
       Government vehicle.
 
          (V) The employee's name, and place of employment(.)
 
    The Agency contends that Union Proposal 4 interferes with its rights
 under section 7106 of the Statute to determine its organization,
 internal security practices, and methods of performing work.
 
    The proposal, on its face, would have the overall effect of dictating
 to the Agency the content of, as well as how it maintains, certain of
 its records and would also restrict management access to such records.
 It does not, by its terms, simply prescribe procedures relating to the
 protection of employee privacy or matters relating to management use of
 information contained therein concerning bargaining unit employees.
 Thus, rather than being limited to matters which have a direct
 relationship to bargaining unit employees, it would, as written, govern
 internal treatment of management records.  The Authority has found that
 absent any demonstration that a proposal concerning agency preparation,
 maintenance, and review of records bears a direct relationship to unit
 employees' work situations or employment relationships, it does not
 concern matters which are conditions of employment.  American Federation
 of Government Employees, AFL-CIO, Local 3403 and National Science
 Foundation, Washington, D.C., 6 FLRA 669 (1981).  Additionally, the
 Authority has found that a proposal which is directed toward
 management's access to agency files does not concern the conditions of
 employment of bargaining unit employees.  American Federation of
 Government Employees, AFL-CIO, National Immigration & Naturalization
 Service Council and U.S. Department of Justice, Immigration &
 Naturalization Service, 8 FLRA 347 (1982) (Union Proposal 1), reversed
 as to other matters sub nom. U.S. Department of Justice, Immigration and
 Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983);  American
 Federation of State, County and Municipal Employees, AFL-CIO and Library
 of Congress, 11 FLRA 632 (1983) (Union Proposal 3).  Inasmuch as Union
 Proposal 4 would prescribe the content of management records as well as
 the manner in which they are maintained by management and would restrict
 management access to such records, it does not concern conditions of
 employment of unit employees and is not within the duty to bargain.
 
                             Union Proposal 5
 
          When the Employer makes assignment of personnel to a position
       to enforce this agreement, the following procedures shall prevail.
 
          (a) All personnel assigned shall have the capability and
       qualifications necessary to perform said duties in a professional
       manner.
 
          (b) All personnel assigned shall be required to establish
       courteous personal contact with the unit employees when said
       employees are driving on the street and roadways.
 
    The Agency contends that the proposal would interfere with its right
 to assign work and, moreover, is not within the scope of bargaining
 inasmuch as the "personnel" to which it refers are either military
 police or contractor personnel and, hence, are not bargaining unit
 employees.
 
    The Union does not dispute the Agency's assertion that the
 "personnel" to which the proposal refers are not in the bargaining unit.
  The Authority has found that an agency's obligation to bargain does not
 extend to matters relating to non-bargaining unit positions.  National
 Council of Field Labor Locals, American Federation of Government
 Employees, AFL-CIO and U.S. Department of Labor, Washington, D.C., 3
 FLRA 290 (1980) (Union Proposal 1);  American Federation of Government
 Employees, National Council of EEOC Locals No. 216, AFL-CIO and Equal
 Employment Opportunity Commission, Washington, D.C., 3 FLRA 504 (1980);
 International Federation of Professional and Technical Engineers,
 AFL-CIO, NASA Headquarters Professional Association and National
 Aeronautics and Space Administration, Headquarters, Washington, D.C., 8
 FLRA 212 (1982).  Union Proposal 5 goes beyond prescribing the manner in
 which bargaining unit employees will be treated, but also seeks to
 establish qualifications for non-bargaining unit personnel who are to be
 assigned to certain positions.  /2/ Inasmuch as Union Proposal 5 seeks
 to establish qualifications to be required for assignment to
 non-bargaining unit positions it does not relate to conditions of
 employment of unit employees and is not within the duty to bargain.
 
                             Union Proposal 6
 
          The Employer agrees when they are going to employ any type of
       speed measuring device that the following procedures shall be
       observed.
 
          (I) At least 2000 yards before the location of such device a
       sign shall be placed warning the unit employee of said device.
 
          (II) If a unit employee is stopped by the enforcement personnel
       because of said device, said employee will be warned if he was not
       exceeding the posted speed limit by 5 M.P.H., the appropriate
       action under the rules of the Road Section of this Agreement may
       be taken.
 
    The Agency contends that the proposal conflicts with its rights under
 section 7106 of the Statute to determine its internal security practices
 and methods of performing its work.  More specifically the Agency argues
 that the purpose of its traffic supervision program is to reduce traffic
 accidents and resultant deaths, injuries and property damage.  Given
 this purpose, it contends that its traffic supervision system is an
 internal security practice, and that it follows that a warning sign to
 alert drivers of the presence of a speed measuring device would defeat
 the system and, hence, directly interfere with its right to determine
 its internal security practices.
 
    The Authority has found that an agency's right to determine its
 internal security practices pursuant to section 7106(a)(1) of the
 Statute includes the right to establish rules to safeguard the agency's
 property.  Immigration & Naturalization Service (see n. 2, supra.) at
 362-364.  In this case the Agency's traffic supervision system is for
 the purpose of, among other things, preserving its property from damage
 and destruction.  Control of speed is an integral part of that system as
 is the use of speed measuring devices for the purpose of eliciting
 compliance with speed restrictions.  Thus, the use of speed measuring
 devices is, under the circumstances, an internal security practice of
 the Agency.  Requiring that a sign be posted giving employees advance
 warning of the presence of a speed measuring device would undermine the
 effectiveness of and, hence, nullify the practice.  The proposal would,
 therefore, directly interfere with management's statutory right under
 section 7106(a)(1) "to determine . . . internal security practices," and
 is not within the duty to bargain.
 
                             Union Proposal 7
 
          When a unit employee receives a traffic violation while driving
       his/her P.O.V., the following procedures shall prevail.
 
          1.  Said violation shall be disposed of administratively,
       unless,
 
          2.  Said violation can be considered a(n) assimilative crime
       then the provisions of Chapter 2, Section 13 of Title 18 USC shall
       prevail.
 
    The Agency asserts that the proposal directly affects internal
 security practices and interferes with its right to determine its
 "method of operation" by dictating the manner in which it will dispose
 of traffic violations.  The Union does not elaborate upon the meaning of
 Union Proposal 7.  However, it appears, based on the record, that cases
 involving traffic violations are disposed of through either
 administrative or judicial action.  /3/ Union Proposal 7 would, on its
 face, limit the types of violations which could be referred for judicial
 action.  It would, correspondingly, require that disposition of traffic
 violations which do not come within the purview of 18 U.S.C. 13, be
 performed administratively within the Agency.  /4/ Hence, it requires
 that the Agency perform certain duties rather than referring them to
 judicial channels for action.
 
    The Authority has found that the right to assign work under section
 7106(a) of the Statute is composed of two discretionary elements:  (1)
 the particular duties and work to be assigned, and (2) the particular
 employees to whom, or position to which, work will be assigned.
 National Treasury Employees Union and Department of the Treasury, Bureau
 of the Public Debt, 3 FLRA 769, 775 (1980), aff'd sub nom. National
 Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982).  Union
 Proposal 7 would effectively require that the Agency assign certain work
 to its employees thus eliminating its discretion to determine whether or
 not such work would be assigned to its employees.  It therefore
 conflicts with the Agency's right to assign work and is, accordingly,
 not within the duty to bargain.
 
                             Union Proposal 8
 
          If the Employer investigates a traffic accident where a unit
       employee is involved, the following procedures shall prevail.
 
          (I) A copy of said accident report shall be furnished the
       affected employee only.
 
          (II) If the employee elects to have a copy of said accident
       (report) released to anyone else, he/she shall so inform the P.M.,
       in writing.
 
          (III) This section shall not be construed to preclude the
       employees from making a report that is required under
       AR-190-5(4-6d).
 
    The Agency contends that Union Proposal 8 is outside the duty to
 bargain because it deals directly with internal security practices as
 well as the methods and means of performing work.  In this latter
 regard, the Agency argues that the proposal can be read to preclude
 release of a report of an accident involving a unit employee to
 management personnel unless the employee involved specifically
 authorizes it.
 
    In the absence of any alternative explanation by the Union and in
 view of the fact that the Agency's interpretation is compatible with the
 language of the proposal, that particular interpretation is adopted for
 purposes of this decision.  Insofar as the effect of the proposal would
 be to restrict the access of management officials to the Agency's
 investigative reports it does not concern a "condition of employment" of
 unit employees and is not within the duty to bargain.  See Immigration &
 Naturalization Service, (n. 2, supra);  and American Federation of
 State, County and Municipal Employees, AFL-CIO and Library of Congress,
 11 FLRA 632 (1983) (Union Proposal 3).
 
    Therefore, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review be, and
 it hereby is, dismissed.  /5/ Issued, Washington, D.C., August 16, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Agency contends that the petition is untimely filed.  In this
 regard the Agency argues that the time limit for filing the petition
 should be tolled from the date on which it served upon the Union a
 written allegation of nonnegotiability.  The Union contends that because
 the written allegation did not flow from a request for one on its part,
 the time limits for filing a petition should not be governed by such an
 unsolicited written allegation.  Rather, it contends that its petition
 was timely based on the