19:0778(95)NG - AFGE Local 2302 and Army Armor Center and Fort Knox, Fort Knox, KY -- 1985 FLRAdec NG
[ v19 p778 ]
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 date that a written request for an allegation of nonnegotiability was made by it to which the Agency did not respond. For the reasons expressed in American Federation of Government Employees, AFL-CIO, Local 3385 and Federal Home Loan Bank Board, District 7, Chicago, Illinois, 7 FLRA 398 (1981), the Authority finds that the Union retained the option of requesting an allegation of nonnegotiability despite having been served with an unsolicited allegation by the Agency. As to the Union's written request for such allegation, in view of the Agency's failure to respond thereto, the petition herein was timely filed pursuant to section 2424.3 of the Authority's Rules and Regulations. National Treasury Employees Union and NTEU Buffalo District Joint Council and Internal Revenue Service, Buffalo District (and the cases consolidated therewith), 3 FLRA 337 (1980). /2/ Cf. 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), 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), (wherein the Authority found that Union Proposals 5 and 6 therein which were limited to establishing contractually certain rights for employees being questioned by management were directly related to conditions of employment of bargaining unit employees and, hence, within the duty to bargain). /3/ Army Regulation (AR) 190-5, Chapter 4 (4-4c.(2)). /4/ 18 U.S.C. 13 provides: Sec. 13. Laws of States adopted for areas within federal jurisdiction Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment. 18 U.S.C. 7 provides, in relevant part, as follows: Sec. 7. Special Maritime and territorial jurisdiction of the United States defined The term "special maritime and territorial jurisdiction of the United States," as used in this title, includes: . . . . (3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building. /5/ In view of the determinations made herein the Authority finds it unnecessary to address the various other contentions of the Agency as to the negotiability of the proposals.