29:0966(71)NG - NAGE, LOCAL R4-6 VS ARMY, FORT EUSTIS



[ v29 p966 ]
29:0966(71)NG
The decision of the Authority follows:


29 FLRA NO. 71

NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
LOCAL R4-6

         Union

    and

DEPARTMENT OF THE ARMY
FORT EUSTIS, VIRGINIA

         Agency

Case No. 0-NG-1393

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of eight proposals. The Union submitted the proposals during bargaining over the implementation of Transportation Center, Fort Eustis (TCFE) Regulation No. 190-10, Military Police Traffic Regulation, which implemented, among other things, DoD Directive 1010.7, Drunk and Drugged Driving by DoD Personnel. The Union proposals seek to change certain portions of the regulation. For the following reasons, we find that the proposals are outside the Agency's duty to bargain.

II. Proposals 1 and 2

Proposal 1

All persons and their property and all vehicles entering the installation are subject to inspection. . . .

(The Union would delete the underlined portion of the Fort Eustis regulation.) 

Proposal 2

Civilians leaving the installation have a right to refuse to submit to the inspection.

(The Union would change the phrase "no right" in the Fort Eustis regulation to "a right.")

A. Positions of the Parties

The Agency contends that the two proposals would immunize employees from inspections and searches and would restrict it from implementing a security measure determined to be necessary for protecting personnel and property. Therefore, the Agency maintains, the proposals would abrogate its right to determine internal security measures under section 7106(a)(1) of the Statute. The Agency also contends that the proposals violate management's right to discipline employees under section 7106(a)(2)(A).

The Union contends that the intent of the proposals is to prevent searches without probable cause and to protect employees from unreasonable searches.

B. Discussion

The Authority has held that an agency's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the right to determine the policies and actions that are necessary to secure or safeguard its physical property against internal or external risks, to prevent improper or unauthorized disclosure of information, or to prevent the disruption of the Agency's activities or operations. See National Treasury Employees Union, Chapter 153 and Department of the Treasury, U.S. Customs Service, Region II, 21 FLRA No. 102 (1986).

We find that Proposals 1 and 2 have the same effect as Proposal I which was found to be nonnegotiable in National Treasury Employees Union, Chapter 21 and Department of the Treasury, Bureau of Printing and Engraving, 18 FLRA 405 (1985). That proposal would have expressly limited the agency's right to conduct searches except under certain circumstances and therefore was found to conflict with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. 

In this case, the Agency has demonstrated that incidents of pilferage and of drug trafficking at Fort Eustis led it to implement a regulation which required the inspection of persons and vehicles entering and leaving the installation. The Union's proposed changes in the regulation would effectively negate those measures and thereby would directly interfere with management's right to determine its internal security practices. Therefore, for the same reasons as set forth in National Treasury Employees Union, 18 FLRA 405, we find that Proposals 1 and 2 are outside the duty to bargain. See also American Federation of Government Employees, AFL - CIO, Local 987 and Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 24 FLRA No. 91 (1986), in which we found that a proposal requiring a gate to be kept open, after the agency had determined that it was essential to the security of the flight line that the gate be closed, negated management's internal security plan and was outside the duty to bargain.

In view of this finding, it is unnecessary to address the Agency's argument with regard to the right to discipline employees.

III. Proposal 3

An individual's installation driving privilege will be revoked for a period of not less than three years.

(The underlined portion would change the time period for revocation of driving privileges set forth in the Fort Eustis regulation from 5 to 3 years and is the portion in dispute.)

A. Positions of the Parties

The Agency explains that this proposal concerns the penalty to be applied to employees who are apprehended driving on the installation while a suspension or revocation of their driving license is in effect. The Agency contends that the proposal would prevent it from imposing a more restrictive or a more lenient penalty and thereby would place restrictions on its rights to determine internal security matters under section 7106(a)(1) of the Statute and to discipline employees under section 7106(a)(2)(A). 

The Union asserts that the proposed change in the regulation is intended to decrease adverse impact and hardship on employees. The Union denies that the change interferes with the Agency's right to regulate internal security and maintains that it would guarantee that each party is assured due process.

B. Discussion

We find that Proposal 3 is outside the duty to bargain because it places a substantive restriction on management's right to discipline employees. The Authority has found that proposals which would restrict management's discretion to choose the specific penalty to impose in disciplinary actions violate the right to discipline under section 7106 (a) (2) (A) of the Statute. See American Federation of Government Employees, AFL - CIO, Local 2302 and U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, 19 FLRA 778 (1985) (Proposal 1), finding nonnegotiable a proposal which would permit suspension or revocation of driving privileges only for serious moving violations and only when other available corrective actions have failed to produce driver improvement. See also National Maritime Union of America, AFL - CIO and Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Survey, Rockville, Maryland, 15 FLRA 576 (1984), which involved a proposal that the deduction of wages as a fine for misconduct would not be used as a penalty. That proposal was found to be outside the duty to bargain because it interfered with the agency's right to make substantive determinations regarding the choice of the particular disciplinary action to be imposed on an employee for misconduct.

Proposal 3 would lower the minimum penalty which management could impose for the offense of driving under a suspended or revoked driving license from the 5 years established by the Agency regulation to 3 years. The proposal thus deprives management of the discretion to establish the minimum period of suspension or revocation which it will impose for that offense. Therefore, Proposal 3 would directly interfere with the Agency's right to take disciplinary action under section 7106(a)(2)(A). See also International Plate Printers, Die Stampers and Engravers Union of North America, AFL - CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA No. 9 (1987) (Provision 22, subsection (a)) (a provision which restricts the agency, in disciplining an employee, to selecting the minimum discipline necessary "to achieve a proper disciplinary objective" interferes with the right to discipline employees and is outside the duty to bargain). 

Accordingly, we find that Proposal 3 is outside the Agency's duty to bargain. In view of this finding, it is unnecessary to address the Agency's contention that the proposal also violates its right to determine its internal security practices under section 7106(a)(1) of the Statute. Moreover, while the Union states that the proposal is intended to reduce the adverse impact on employees of management's policy, it does not claim that the proposal is an appropriate arrangement within the meaning of section 7106(b)(3) or under the test set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986). Consequently, we will not consider whether the proposal excessively interferes with the Agency's right to determine its internal security practices.

IV. Proposal 4

An individual's driving privilege may be suspended for a period of up to six months or be revoked for a period of up to one year if the individual commits an offense for which revocation is mandatory upon conviction, is incompetent to drive a motor vehicle due to a physical or mental impairment, commits an offense in one of the states which if committed on the installation would be grounds for suspension or revocation.

(The Union intends this proposal to be applicable to military personnel only.)

A. Positions of the Parties

The Agency contends that Proposal 4 interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency claims that the proposal would prohibit it from suspending or revoking an employee's on-base driving privileges based on the individual's driving record, arrest record, or documentation of other incidents. The Agency also contends that the proposal is outside the duty to bargain because it pertains solely to military personnel who are outside the bargaining unit. Finally, the Agency contends that the proposal is contrary to an agency regulation, DoD Directive 1010.7, for which there is a compelling need. 

The union denies that the proposal infringes on management's right to establish and regulate internal security. The union maintains that the intent of the proposal is to prevent the Agency's attempt to regulate employees' off-duty conduct which does not relate to their positions with the Agency.

B. Discussion

We find that Proposal 4 is similar to the proposal which was found to be outside the duty to bargain in Defense Logistics Council of American Federation of Government Employees Locals and Defense Logistics Agency, 20 FLRA 166 (1985), aff'd in part, rev'd in part and remanded sub nom. Defense Logistics Council of American Federation of Government Employees Locals v. FLRA, 810 F.2d 234 (D.C. Cir. 1987). The Authority found that the proposal in that case would prevent the agency in certain circumstances from expeditiously suspending the driving privileges of employees based on their off-base driving records and would thereby impose substantive limitations on management's right to determine its internal security practices.

The Agency in this case explains that its policy to expeditiously suspend or revoke installation driving privileges of military and civilian employees is intended to reduce deaths, injuries, and property damage resulting from traffic accidents. By removing civilian employees from the coverage of the regulation, the proposal would restrict the Agency's right to determine a policy and action which is part of its plan to safeguard its personnel and physical property. Therefore, for the reasons set forth in Defense Logistics Agency, we find that Proposal 4 is outside the Agency's duty to bargain because it directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. See also Federal Employees Metal Trades Council, AFL - CIO and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 23 FLRA No. 18 (1986).

In view of this finding, it is unnecessary to address the Agency's other contentions that the proposal is outside the duty to bargain because it relates solely to nonbargaining unit employees and that it conflicts with a Department of Defense directive for which there is a compelling need. 

V. Proposal 5

The installation driving privileges of any member of the Army, any family member, DA civilian employee or any other individual having such privilege will be immediately suspended pending resolution of the charge regardless of where the incident took place, under the following circumstances:

(1) Lawful apprehension for DWI or DUI.

(2) Refusal to take or failure to complete a lawfully requested chemical test for blood alcohol content.

(3) Driving or being in physical control of a motor vehicle when the individual has a blood alcohol content (BAC) of 0.10 or higher, irrespective of other charges.

(The Union would delete the underlined portion; it is this deletion that is in dispute.)

A. Positions of the Parties

The Agency contends that Proposal 5 is covered by the decision in Defense Logistics Council, 810 F.2d 234, in which the court upheld the Authority's determination that a similar proposal was nonnegotiable. The Agency maintains that Proposal 5 would completely prohibit management from suspending an employee's installation driving privilege because of an incident that occurred off post and contends that the proposal violates the right to determine internal security under section 7106(a)(1) and to discipline employees under section 7106(a)(2)(A) of the Statute.

The Union denies that the proposal infringes on management's right to establish and regulate internal security and states that the intent is to hold an employee responsible only for driving infractions which occur on the installation.

B. Discussion

We agree with the Agency that Proposal 5 in this case is similar to the proposal found to be outside the duty to bargain in Defense Logistics Agency, 20 FLRA 166. The  proposal in that case would have prohibited management from taking administrative action against an employee for traffic offenses occurring off the installation without establishing a connection to job performance. The Authority found that the proposal sought to change the substantive criteria by which management would make decisions concerning its internal security practices. In the present case, the proposal would similarly prohibit the suspension of driving privileges for incidents which occur off the installation. Also, as the Agency points out, the proposal is more restrictive than the proposal in Defense Logistics Agency because it does not allow the Agency to show a connection to job performance. See also Defense Logistics Agency Council of AFGE Locals, AFL - CIO and Department of Defense, Defense Logistics Agency, 24 FLRA No. 40 (1986) (Provision 1) (provision relating to off-duty conduct was nonnegotiable because it was contrary to Government-wide regulations and because it directly interfered with management's right to discipline). Therefore, for the reasons set forth in Defense Logistics Agency, 20 FLRA 166, we find that Proposal 5 is outside the duty to bargain because it directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.

In view of this decision, it is unnecessary to address the Agency's contention that the proposal violates the right to take disciplinary action under section 7106(a)(2)(A).

VI. Proposals 6, 7, and 8

Proposal 6

The Provost Marshal will forward the hearing official's findings and recommendations to the Chief of Staff. If the Chief of Staff determines that the test was lawfully requested and that the individual refused to submit to or failed to complete the test, the suspension will become a one year revocation dating from the date of the original preliminary suspension, irrespective of the ultimate disposition of the underlying DWI/DUI.

(The Union proposes to delete this material from the regulation.)  

Proposal 7

When an individual whose installation driving privilege was suspended based on a BAC (blood alcohol content) test presents an official report that there has been a finding of not guilty, that the charges have been dismissed or reduced to a lesser offense or that there has been an equivalent determination in a non-judicial punishment proceeding or military or civilian administrative action, and the basis of the determination was not an invalid BAC test, the suspension will be continued pending completion of a hearing.

(The Union proposes to delete this material from the regulation.)

Proposal 8

Additional penalty for subsequent DWI or DUI offense: For each additional determination within a five-year period that revocation is authorized under this chapter, the commander/supervisor of the offender will ensure that the individual does not obtain or use an SF-46, U.S. Government Motor Vehicle Operator's Identification Card, for a minimum of six months. This does not preclude a commander/supervisor from imposing this prohibition for a first offense, for a longer period of time for the first or any subsequent offense, or for such other reasons as may be appropriate.

(The Union proposes to delete this material from the regulation.)

A. Positions of the Parties

The Agency contends that Proposals 6, 7, and 8 would delete provisions which would (1) allow management to revoke an employee's driving privileges for refusing to take a blood alcohol content test (BAC) regardless of the ultimate disposition of a drunk driving charge, (2) allow management to continue the suspension of an employee who failed a BAC  test pending a separate hearing, and (3) provide for management's ability to impose limitations on an employee's operation of government motor vehicles because of drunk driving offenses. The Agency contends that those parts of its regulation are part of the policy to safeguard personnel and property and, thus, that they are a part of its determinations of internal security requirements. Therefore, the Agency maintains, the Union's proposed deletion of those parts of the regulation interferes with management's right to determine its internal security requirements under 7106(a)(1) of the Statute. The Agency also contends with regard to Proposal 6 that it would preclude management from assigning duties to the Provost Marshal and the Chief of Staff and thus would interfere with the right to assign work under section 7106(a)(2)(B) of the Statute.

Finally, the Agency contends that Proposals 6, 7, and 8: (1) are inconsistent with the requirement of section 7101(b) that the Statute be interpreted in a manner consistent with the requirement of an effective and efficient Government; and (2) do not involve a condition of employment. The Agency also maintains that a compelling need exists for DoD Regulation 1010-7, under which TCFE Regulation No. 190-10 was issued.

The Union denies that its proposals interfere with the Agency's ability to establish and regulate internal security and contends that they are intended to guarantee due process for employees. The Union contends that (1) Proposal 6 is intended to protect an employee from an arbitrary decision based on evidence which may have been nullified by a judicial decision to dismiss or reduce the charge; (2) Proposal 7 is intended to protect employees from being &adversely impacted, by an action based on a charge which has been dismissed; and (3) Proposal 8 is intended to protect an employee from a rule whose application and enforcement is written to be arbitrary and capricious.

B. Discussion

Proposals 6, 7, and 8 concern actions which would be taken by management with regard to employees whose installation driving privileges have been suspended or revoked for drunk driving or related offenses. We find that the proposals are similar to the proposals found to be outside the duty to bargain in Defense Logistics Agency, 20 FLRA 166 (1985), and  in American Federation of Government Employees, AFL - CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord California, 20 FLRA 170 (1985), aff'd sub nom. AFGE, Local 1931 v. FLRA, 802 F.2d 1159 (9th Cir. 1986). In Defense Logistics Agency, the Authority found that the agency practice of expeditiously suspending driving privileges of employees upon a showing of arrest for intoxicated driving off base was an internal security practice within the meaning of section 7106(a)(1) of the Statute and that a proposal which interfered with that practice was outside the duty to bargain. In Naval Weapons Station, Concord, the Authority found that a proposal which would have restricted the agency's practice of suspending employee driving privileges because of arrests for drunk or drugged driving was outside the duty to bargain because it interfered with management's right to deter