20:0166(19)NG - Defense Logistics Council of AFGE Locals and Defense Logistics Agency -- 1985 FLRAdec NG



[ v20 p166 ]
20:0166(19)NG
The decision of the Authority follows:


20 FLRA No. 19

DEFENSE LOGISTICS COUNCIL 
OF AMERICAN FEDERATION OF 
GOVERNMENT EMPLOYEES LOCALS 
Union 

and 

DEFENSE LOGISTICS AGENCY 
Agency

                                      Case No. 0-NG-1063

                DECISION AND ORDER ON NEGOTIABILITY ISSUE

   The petition for review in this case comes before the Federal Labor
Relations Authority (the Authority) pursuant to section 7105(a)(2)(E) of
the Federal Service Labor-Management Relations Statute (the Statute),
and presents an issue concerning the negotiability of the following
Union proposal:  /1/

         Section 2 - Employee Rights

         (a) No action, except for just cause, will be taken against any
      bargaining employee under this article until there is a conviction
      by the Court or review procedures under the provisions of Article
      36, Grievance Procedures have been exhausted.

         (b) All actions taken against the employee will be for just
      cause.

         (c) No disciplinary action will be taken that is greater than
      that administered by the courts.

         (d) The affected employee and/or his/her representative may
      request that the provisions of Article 39, Stays of Personnel
      Actions, be invoked.

         (e) All actions taken by the Employer, under this article are
      subject to the provisions of Article 36, Grievance Procedures.

         Section 3 - Exceptions to Suspensions

         If requested, employees may be granted an exception to the
      suspension.  The following are some, but not necessarily all, of
      the reasons that an exception may be granted:

         (a) Physical handicap

         (b) Personal or family hardship

         (c) Lack of available transportation

         (d) Driving is a requirement of the employee's position

         (e) Employee will consider or is enrolled in an employee
      assistance program.

         Section 5 - No Administrative Action for Off Premise Offenses
      Absent a Nexus

         The Employer will take no administrative action against any
      employee for off premise offenses as spelled out in Section 2
      above without there being a nexus (link or connection) to job
      performance.

   Upon careful consideration of the entire record, including the
parties' contentions, the Authority makes the following determinations.
In an effort to reduce the number of fatalities and injuries suffered by
its employees and the amount of property damage that results from
intoxicated driving, the Agency has adopted the practice of
expeditiously suspending the driving privileges on its premises of
employees and other persons based upon an arrest report or other
official documentation of the circumstances of an apprehension for
intoxicated driving.  In this regard, the Agency has asserted, among
other things, that the foregoing practice is an internal security
practice;  that the proposal conflicts with it;  and that the proposal
thereby interferes with management's right pursuant to section
7106(a)(1) of the Statute to determine its internal security practices.
/2/

   An agency's right to determine internal security practices includes
the right to determine policies and actions which are part of its plan
to secure or safeguard its personnel and physical property.  See
American Federation of Government Employees, Local 32 and Office of
Personnel Management, 16 FLRA No. 10(1984).  In agreement with the
Agency, the Authority concludes that the proposal at issue in the
present case would conflict with a preventive measure taken by the
Agency to guard against harm to its property and personnel and, hence,
would directly interfere with the Agency's right to determine its
internal security practices.  Specifically, Section 2 of the proposal
establishes various standards which in certain circumstances would
prevent the Agency from expeditiously suspending driving privileges
pursuant to its practice.  Section 3 of the proposal states possible
exceptions to suspension of driving privileges on Agency premises.
Section 5 requires that no administrative action can be taken against
any employee for traffic offenses not occurring on the Agency's
premises.  Thus, the proposal would, in effect, impose substantive
limitations on management's exercise of its right to determine its
internal security practices, in particular, the decision as to whether
and the circumstances under which the privilege of driving on its
premises should be suspended.

   The Union's argument that the proposal is a negotiable procedure
under section 7106(b)(2) of the Statute because it does not prevent the
Agency from acting at all with respect to determining its internal
security practices is not persuasive.  The proposal would limit when the
Agency could suspend an employee's driving privileges on its property
and thus would have the effect of negating or reversing management's
decision itself.  Therefore, it does not involve merely a procedure
which management will observe in exercising the reserved right in
question but constitutes an improper attempt to negotiate with respect
to the decision itself.  As such, the proposal would impinge upon the
Agency's right to make substantive determinations regarding its choice
of a particular internal security practice to protect its personnel and
property.  The proposal would therefore directly interfere with the
Agency's right under section 7106(a)(1) of the Statute, and is, thus,
outside the duty to bargain.

   Accordingly, 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.  /3/

   Issued, Washington, D.C., September 16, 1985
                                      (s) HENRY B. FRAZIER III
                                      Henry B. Frazier III, Acting
                                      Chairman
                                      (s) WILLIAM J. MCGINNIS JR.
                                      William J. McGinnis, Jr., Member
                                      FEDERAL LABOR RELATIONS AUTHORITY






--------------- FOOTNOTES$ ---------------


   /1/ The Union's petition as originally filed contained additional
sections to its proposal, i.e., Section 1, Section 2f, Section 4(a) and
(b), and Section 6(a) and (b).  In its response to the Agency's
Statement of Position, the Union withdrew its appeal as to Section 4(a).
 The Agency in its Statement of Position withdrew its allegation of
nonnegotiability as to Sections 1, 2f, 4(b), and 6(a) and (b).  Thus,
there are no longer any issues before the Authority as to whether those
sections of the proposal are within the duty to bargain.


   /2/ Section 7106(a)(1) provides, in relevant part, as follows:

         Section 7106.  Mana