32:0990(141)NG - - AFGE Local 1411 and Army, Fort Benjamin Harrison - - 1988 FLRAdec NG - - v32 p990



[ v32 p990 ]
32:0990(141)NG
The decision of the Authority follows:


32 FLRA No. 141

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

 

AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES,

AFL-CIO, LOCAL 1411

Union

and 

DEPARTMENT OF THE ARMY

FORT BENJAMIN HARRISON

Agency

Case No. O-NG-1518

DECISION AND ORDER ON NEGOTIABILITY ISSUE

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of the first sentence of a single Union proposal (Proposal 3) which prevents the Agency from towing illegally parked vehicles until an effort has been made to locate the driver.(*)

For the reasons set forth below, we find that the disputed sentence of the proposal is nonnegotiable because it interferes with the Agency's right to determine internal security practices under section 7106(a)(1) of the Statute. We also find that the first sentence of the proposal is not an "appropriate arrangement" under section 7106(b)(3) of the Statute.

II. Background and Proposal

The Agency decided that as a method of reducing parking violations, it would begin a towing enforcement policy for illegally parked vehicles. According to the Agency, employees were notified of the new policy, informed where parking was permitted and prohibited, and made aware of the location of the tow away zones. After notifying employees of the above facts, cars parked in "no parking" areas were and continue to be towed. In response to the new towing policy, the Union submitted the following proposal (Proposal 3):

Vehicles will not be towed until after an effort has been made to locate and contact the driver. The employer will assume all responsibility for any damage to the towed vehicle. (Only the underlined portion is in dispute.)

III. Positions of the Parties

The Agency argues that towing of illegally parked vehicles constitutes a disciplinary action under section 7106(a)(2)(A) which is imposed to assure corrective behavior and to deter similar improper behavior by other employees. While the Agency disputes the Union's claim that the disputed sentence applies only to non-emergency or non-urgent situations, the Agency claims that even if so limited, the disputed sentence still prohibits the Agency from towing when the driver can be located. Thus, the Agency argues that by limiting the penalties which may be imposed for illegal parking, the disputed sentence interferes with its right to determine the appropriate discipline under section 7106(a)(2)(A).

The Agency also argues that by prohibiting towing of illegally parked vehicles, the disputed sentence "allows for the creation of a safety hazard." Therefore, the Agency contends the disputed sentence interferes with its right to determine its internal security practices under section 7106(a)(1) of the Statute. Statement of position at 4.

The Union contends that the sentence in dispute refers only to non-emergency and non-urgent situations. The Union argues that during the discussions between the parties, both sides understood that the towing to be held in abeyance involved only vehicles parked in general "no parking" zones, such as fire lanes, reserved spaces, and other similar areas. Further, the Union argues that the sentence in dispute, at worst, only delays the Agency's exercise of any relevant management rights and the Agency could tow a vehicle even after notifying the driver. Consequently, the Union contends that the Agency is not prevented from "acting at all," and, therefore, the sentence does not impinge on management rights. Reply Brief at 6. The Union also argues that "Because the proposal does not work to stop the exercise of the management right itself but merely delays it until after an 'effort' is made, it is procedural in nature and negotiable under section 7106(b)(2) of the Statute." Reply Brief at 7. Alternatively, the Union contends that should the Authority be persuaded that the disputed sentence infringes on management's rights to discipline or to determine its internal security practices, the sentence constitutes an "appropriate arrangement" under section 7106(b)(3) of the Statute.

IV. Analysis and Conclusions

A. The Disputed Sentence Does not Interfere with the Agency's Right to Discipline Employees Under Section 7106(a)(2)(A) of the Statute.

Proposals which would restrict management's discretion to choose the specific penalty to impose in disciplinary actions involving motor vehicle infractions violate the right to discipline under section 7106(a)(2)(A) of the Statute. See, for example, National Association of Government Employees, Local R4-6 and Department of the Army, Fort Eustis, Virginia, 29 FLRA 966, 968-69 (1987) (Proposal 3).

The disputed sentence provides that the Agency will not tow illegally parked vehicles until an effort has been made to locate the driver. The Union argues that while the disputed sentence "may imply that owners will be given the opportunity to move vehicles so that they will not be towed but the proposal does not bestow entitlement [of] that opportunity by its terms." Reply Brief at 8. The Union's statement of the meaning and the wording of the disputed sentence are consistent. The goal of the disputed sentence is to permit an employee to move his/her vehicle from a "no parking" area once he/she has been located, thus, obviating the need to tow. However, we find that nothing in the sentence precludes the Agency from towing the illegally parked vehicle after the driver is located.

Consequently, we find that the disputed sentence permits the Agency to tow an illegally parked vehicle after an effort is made to locate the driver. The disputed sentence does not prohibit the Agency from towing illegally parked cars after an effort is made to locate the driver. Therefore, assuming that towing cars constitutes an exercise of the Agency's right to discipline, the disputed sentence does not interfere with the Agency's right to choose and impose a specific penalty for traffic violations--towing illegally parked cars--under section 7106(a)(2)(A) of the Statute.

B. The Disputed Sentence Directly Interferes with the Agency's Right to Determine its Internal Security Practices under Section 7106(a)(1).

An agency's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the right to determine policies and take actions which are part of its plan to secure or safeguard its personnel and physical property. See National Federation of Federal Employees, Local 15 and U.S. Army Armament, Munitions and Chemical Command, Rock Island Arsenal, Rock Island, Illinois, 30 FLRA 472 (1987); National Association of Government Employees, SEIU, Local R7-51 and Department of the Navy, Navy Public Works Center, Great Lakes, Illinois, 30 FLRA 415 (1987).

As noted above, the Agency initiated its towing policy because of the numerous incidents of illegal parking of vehicles in "no parking" areas. The Agency contends that these illegal parking incidents created a safety hazard as the flow of traffic around its building was restricted and emergency vehicles would have difficulty getting in and out of the area. Further, the Agency contends that the health and safety of its employees was endangered "by requiring automotive jockeying to maneuver around the illegally parked cars." Statement of position at 4.

We conclude that the Agency has shown a link between its goal of safeguarding personnel and property and its decision to tow cars that are parked in "no parking" areas. We find, therefore, that the Agency's towing of illegally parked vehicles constitutes an exercise of its right under section 7106(a)(1) to determine Agency internal security practices.

We find that the disputed sentence interferes with the Agency's right to determine its internal security practices. In so finding, we reject the Union's argument that the disputed sentence does not apply to emergency situations because the Union's interpretation is inconsistent with the language of the disputed sentence. The Agency initiated its towing policy because of the numerous incidents of illegal parking which created safety problems. The Agency instituted this policy so that it could quickly remove the safety hazard by immediately towing any cars that were illegally parked and, thus, were blocking access to the premises. In our view, actions to control or remove from its premises vehicles which may pose a threat to the safety of its property and personnel is clearly a matter directly relating to the internal security of the Agency. Moreover, the discretion to determine under what circumstances immediate removal is warranted is an integral part of such action.

The disputed sentence requires the Agency to attempt to locate and contact the driver before towing an illegally parked vehicle. Therefore, it directly interferes with the Agency's discretion to make substantive decisions as to when an illegally parked vehicle will be towed. Hence, the disputed sentence conflicts with the Agency's right to determine its internal security practices. Therefore, the disputed sentence of the proposal is not within the duty to bargain. 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, 782 (1985) (Proposal 3).

We further find that even if the intent of the disputed sentence merely was to delay the Agency's ability to tow an illegally parked vehicle, the disputed sentence would still be nonnegotiable. The intent of the Agency's towing policy is to remove safety hazards as rapidly as possible. The requirement that the Agency try to locate and contact the driver while the safety hazard continues directly conflicts with the Agency's right.

C. The Disputed Sentence is not a Procedure under Section 7106(b)(2).

The Union contends that the actual language of the disputed sentence, which requires that vehicles will not be towed until an effort has been made to locate and contact the driver, does not demonstrate an intent to obviate any management right. Further, the Union contends that the disputed sentence does not prevent the Agency from "acting at all," and, therefore, does not impinge on management's rights. Reply Brief at 6. The Union also contends that the disputed sentence, at worst, delays the exercise of any relevant management right. In conclusion, the Union contends that "Because the proposal does not work to stop the exercise of the management right itself but merely delays it until after an 'effort' is made, it is procedural in nature and negotiable under section 7106(b)(2) of the Statute." Reply Brief at 7.

We do not agree. The determination of when and under what circumstances a vehicle will be towed is clearly within the discretion of the Agency. The disputed sentence conditions the exercise of management's right to determine its internal security practices on a requirement that it make "an effort" to contact the owner of the illegally parked vehicle. This requirement applies even when the Agency has reasonably determined that a car must be towed immediately. Thus, contrary to the position of the Union, the disputed sentence is not a procedure under section 7106(b)(2). Rather, the disputed sentence constitutes a direct interference with a management right under section 7106(a)(1) to determine its internal security practices.

D. The Disputed Sentence is not an Appropriate Arrangement under Section 7106(b)(3).

As we have found that the disputed sentence of the proposal conflicts with the Agency's right to determine its internal security practices, the disputed sentence of the proposal is nonnegotiable unless it constitutes a negotiable "appropriate arrangement" under section 7106(b)(3) of the Statute. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986).

In support of its claim that the disputed sentence constitutes an "appropriate arrangement," the Union argues that "the purpose of towing, vis a vis a 'security arrangement' is to remove vehicles from a certain area." Reply Brief at 9. According to the Union, notification to the owner who, presumably, will quickly respond to remove the vehicle accomplishes the same end--the removal of the vehicle. The Union contends that there is little distinction in whether the removal of the vehicle will be effected by a tow truck or by the owner driving the vehicle away. Finally, the Union argues that towing a vehicle creates a number of significant problems for the owner including: (1) the owner might be unaware of the towing and return to find his vehicle missing; (2) the owner may have difficulty in