35:0740(80)NG - - NFFE Local 1655 and DOD, NG Bureau, Military Affairs, Illinois Air NG - - 1990 FLRAdec NG - - v35 p740



[ v35 p740 ]
35:0740(80)NG
The decision of the Authority follows:


35 FLRA No. 80

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1655

(Union)

and

U.S. DEPARTMENT OF DEFENSE

NATIONAL GUARD BUREAU

DEPARTMENT OF MILITARY AFFAIRS

ILLINOIS AIR NATIONAL GUARD

(Agency)

0-NG-1648

DECISION AND ORDER ON NEGOTIABILITY ISSUES

April 27, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on 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 five proposals submitted by the Union during negotiations for a new agreement. Proposals 1, 2 and 3 concern the Agency's requirements for uniforms worn by bargaining unit technicians. Proposal 4 requires the Agency to provide paid time to employees to clean up before lunch and at the end of the day. Proposal 5 prevents the Agency from searching employees' personal property without the prior approval of the Union President.

For the reasons set forth below, we find that Proposals 1 and 2 and the first sentence of Proposal 3 violate the Agency's right to determine the methods and means of performing its work and are therefore nonnegotiable. We are unable to determine the negotiability of the last sentence of Proposal 3 because the operation of that sentence is unclear. Proposal 4 is nonnegotiable because it violates the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. Proposal 5 is inconsistent with the Agency's right under section 7106(a)(1) to determine its internal security practices and is therefore nonnegotiable.

II. Proposals 1, 2 and 3

Proposal 1

All technicians in the excepted service, at the start of each workday, will wear a Class A or Class B Military Uniform, with recognized grade and awards when performing technician duties. Official time will not be used for changing to the military uniform at the work site.

Proposal 2

After the start of each workday, the Employer will declare that [sic] what the appropriate work uniform will be for that day.

Proposal 3

At the end of each workday, when technicians leave their work site in a military uniform, the uniform will only be a Class A or Class B. Official time will be allowed to change into appropriate military uniform.

A. Positions of the Parties

The Agency reads Proposals 1, 2 and 3 as giving military technicians in the bargaining unit the option of beginning the workday in one of two military uniforms ("class A" or "class B"). Management would then determine what uniform would be appropriate for the day, and if a technician had to change uniforms, he or she would be provided official time in which to do so. If the technician elected to wear the military uniform upon leaving the worksite at the end of the day, he or she would be required to change again into either the "class A" or "class B" uniform to do so, and would again be granted official time to change.

The Agency contends that by prescribing the type of military uniform to be worn by unit members at the beginning and end of the workday, the proposals violate its right under section 7106(b)(1) of the Statute to determine the methods and means of performing the Agency's work. The Agency argues that, under section 7106(b)(1), it has the right to select the uniform to be worn at any particular time during the workday. The Agency asserts that because the proposals "prevent management from determining and prescribing which work uniform is to be worn at a particular time during the work day, they substantively interfere with the exercise of management's right to determine the methods and means of performing its work, and would totally abrogate the exercise of that right." Agency's Statement of Position (Statement) at 3 (emphasis in original).

The Agency contends that Proposals 2 and 3 also violate the Agency's right to assign work under section 7106(a)(2)(B). The Agency argues that the proposals would allow technicians to change uniforms during duty time and, thereby, would prevent management from assigning other duties to technicians during the time allotted for changing uniforms.

The Union states:

The wearing or the not wearing of the Military Uniform is not the issue here, but what uniform will we wear. Wearing of the Military Uniform will not interfere with management's right[s] and is management's responsibility to determine the method and means of performing work. Management has never informed the Union or the technicians what the appropriate Military Uniform will be for method and means of performing work. By establishing in contract language what the appropriate Military attire will be for coming and going to work, and what Military Uniform will be when performing work will clearly establish method and means, which has never been done by the Employer.

Proposal #3 refers to changing from one Military Uniform to another, this is part of management's right when work is assigned, also for the technicians to be in the proper Military Uniform when performing this work. The technician should be told what the proper Military Uniform will be. . . . [W]e are only talking about the Military uniform, not civilian clothing.

Union's Petition for Review (Petition) at 1-2.

B. Analysis

It appears from the record that the Agency has prescribed several "classes" of military uniform for civilian technicians. Proposals 1 and 2 and the first sentence of Proposal 3 prescribe the class of uniform to be worn by civilian technicians at the start and end of their tour of duty and establish when the Agency shall prescribe the appropriate work uniform. We find that the Union's proposals directly interfere with the Agency's right under section 7106(b)(1) of the Statute to determine the methods and means of performing work.

The proposals do not merely provide civilian technicians with notice of the Agency's uniform requirements. Rather, the proposals actually establish: (1) the class of the military uniform to be worn at the start and end of a technician's tour of duty; and (2) when the Agency shall prescribe the uniform that will be required for a particular workday.

The requirement that civilian military technicians wear a prescribed uniform while performing technician duties constitutes management's determination of the methods and means of performing work within the meaning of section 7106(b)(1) of the Statute. See Division of Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA 288 (1984), aff'd sub nom. New York Council, Association of Civilian Technicians v. FLRA, 757 F.2d 502 (2d Cir. 1985), cert. denied, 474 U.S. 846 (1985). The ability to prescribe the specific type of military uniform "is critical to achieving the purposes for which the [a]gency has adopted the uniform requirement." Association of Civilian Technicians, Wisconsin Chapter and Wisconsin Army National Guard, 26 FLRA 682, 686 (1987). The Agency's right to determine the methods and means of performing its work includes the right to establish a uniform policy for civilian technicians and determine how the uniform policy will be implemented. United States Customs Service, Washington, D.C. and United States Customs Service, Pacific Region, 25 FLRA 248, 255 (1987), set aside as to other matters sub nom. United States Customs Service, Washington, D.C. v. FLRA, 854 F.2d 1414 (D.C. Cir. 1988).

"The military nature of National Guard civilian technician uniforms distinguishes cases involving the technician uniform requirement from cases involving other Federal employees required to wear uniforms." American Federation of Government Employees, AFL-CIO, Local 3006 and Idaho Army and Air National Guard, 32 FLRA 539, 541 (1988). Proposals which allow employees to deviate from the prescribed military uniform directly interfere with management's rights under section 7106(b)(1) to determine the methods and means of performing work and do not constitute negotiable procedures under section 7106(b)(2). Wisconsin Army National Guard, 26 FLRA at 686-87. The composition of the prescribed military uniform is not negotiable as an appropriate arrangement under section 7106(b)(3) because any attempt through negotiations to modify or add to the prescribed military uniform would "totally abrogate" management's decision to use the military uniform as a means of accomplishing the mission of the National Guard. Id. at 687.

Proposals 1, 2 and 3 do not interfere with the Agency's ability to determine whether the technicians will wear a military uniform or the composition of the uniform. However, the Agency's right to implement a uniform requirement under section 7106(b)(1) is not limited to establishing a uniform requirement and determining the composition of the prescribed military uniform. As part of its uniform requirement, an agency may require civilian technicians to observe the grooming standards prescribed for the military uniform. National Association of Government Employees, SEIU, AFL-CIO and National Guard Bureau, Adjutant General, 26 FLRA 515, 527-28 (1987). An agency may also require that civilian technicians observe the military customs and courtesies prescribed by regulation whenever they are wearing the uniform, including during off-duty hours. Association of Civilian Technicians, Michigan State Council and Michigan Air National Guard, 32 FLRA 1207 (1988) (the Authority found that grooming standards and the military customs and courtesies prescribed by regulation were integrally related to the Agency's purpose in imposing the uniform requirement--maintaining a highly developed esprit de corps and military discipline among civilian technicians--and therefore concerned the methods and means of performing the Agency's work). See also American Federation of Government Employees, AFL-CIO, Local 3006 and The Adjutant General, State of Idaho, Boise, Idaho, 34 FLRA 816 (1990).

The same reasoning applies to a determination concerning the wearing of the various classes of the prescribed military uniform. The decision as to which class of uniform will be required during designated periods of the workday or for specific occasions and purposes is integrally related to the Agency's purpose of maintaining a highly developed sense of esprit de corps and military discipline among civilian technicians. Consequently, determinations concerning the particular class of uniform to be worn during specified periods of the workday or on specified occasions is a matter relating to the methods and means of performing work within the meaning of section 7106(b)(1) of the Statute. See, for example, United States Department of Justice v. FLRA, 727 F.2d 481, 488 (5th Cir. 1984) (the decision as to whether employees will wear a uniform on patrol involves a determination of the "means" of performing work).

Similarly, as determinations concerning the particular class of uniform to be worn by technicians during specified periods of the workday concern the methods and means of performing work within the meaning of section 7106(b)(1), it follows that the decision as to when the Agency shall prescribe the particular class of uniform also is a determination concerning the methods and means by which the Agency performs its work. See United States Customs Service, Washington, D.C. v. FLRA, 854 F.2d at 1419 (the right to determine the timing of a program's implementation, where the program constitutes management's determination of the means by which its work will be performed, is part and parcel of the reserved management right to determine the means by which an agency's work will be performed).

Proposals 1 and 2, and the first sentence of Proposal 3, concern Agency determinations which relate to the methods and means of performing work within the meaning of section 7106(b)(1) of the Statute. Those determinations are reserved to management under section 7106(b)(1) unless management elects to bargain with the Union concerning those matters. The Agency has not elected to do so in this case. Therefore, Proposal 1 and the first sentence of Proposal 3 are nonnegotiable because they directly interfere with the Agency's rights under section 7106(b)(1) of the Statute to determine when and under what circumstances civilian technicians will wear the various classes of the prescribed military uniform. Proposal 2 is nonnegotiable because it directly interferes with the Agency's right under section 7106(b)(1) to determine when to prescribe the appropriate work uniform.

The last sentence of Proposal 3 provides employees with "official time" to change from one class of the prescribed military uniform into the class of military uniform that the Agency prescribes as appropriate for the work to be performed during a particular workday. It is clear from the record that the parties understand the term "official time" in this context to mean time for which the employee will be paid which is not chargeable to the employee's personal leave. We interpret the Union's proposal to provide that the time required to change from one military uniform to another will be considered paid duty time and that such time will not be charged to an employee's personal leave.

We are unable to determine from the record before us whether the last sentence of Proposal 3 interferes with the Agency's rights under the Statute. It is not clear whether the employees change uniforms after they report for duty and during the workday as a matter of personal preference or because of an Agency decision to prescribe the "appropriate work uniform" only after the technicians have reported for duty. Neither the Agency nor the Union explains how the Agency's policy concerning uniform changes operates. Whether the employees change uniforms as a matter of personal preference or because it is required by the Agency is central to determining the negotiability of the last sentence of Proposal 3.

Proposals which set aside time during the workday for employees to change clothes merely to accommodate an employee's preference directly interfere with an agency's right under section 7106(a)(2)(B) to assign work. Such proposals preclude the assignment of other duties during the time set aside for employees to change clothes. Those proposals also are not appropriate arrangements under section 7106(b)(3) of the Statute because they excessively interfere with the agency's right to assign work. American Federation of State, County and Municipal Employees, Local 2477, AFL-CIO and Library of Congress, 23 FLRA 204, 206-08 (1986). See also American Federation of Government Employees Council 214, AFL-CIO and Department of Defense, Department of the Air Force, Air Force Logistics Command, 30 FLRA 1025, 1036-37 (1988), affirmed order sub nom. American Federation of Government Employees Council 214 v. FLRA, 865 F.2d 1329 (D.C. Cir. 1988). The Authority has found that such proposals excessively interfere with an agency's rights to assign work because the negative impact of the proposals outweighs the benefit to employees of not having to use their own time to exercise their option to change clothes at work. Library of Congress, 23 FLRA at 206-08. See also Department of Defense, Department of the Air Force, Air Force Logistics Command, 30 FLRA at 1036-37.

The Authority also has held that those activities which are controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer constitute "employment" or "work" for purposes of fulfilling the requirement of a basic 40-hour workweek. See American Federation of Government Employees, AFL-CIO, Local 3231 and Department of Health and Human Services, Social Security Administration, 25 FLRA 600, 602-03 (1987). If changing from one military uniform to another is an activity which is controlled and required by the Agency and pursued necessarily and primarily for the benefit of the Agency, then that activity is "work" or "employment" for purposes of fulfilling the requirement of a basic 40-hour workweek and may be considered a legitimate part of the workday. A proposal providing that employees be compensated for an activity which is a legitimate part of the workday has been found to be negotiable under section 7106(b)(3) of the Statute and enforceable in arbitration. See The Washington Plate Printers Union, Local No. 2, I.P.D.E.U. and U.S. Department of the Treasury, Bureau of Engraving and Printing, 31 FLRA 1250 (1988).

As we stated above, the parties have not explained how the Agency's policy concerning uniform changes for civilian technicians operates. Therefore, we are unable to determine whether the last sentence of Proposal 3 constitutes an impermissible intrusion on the exercise of the Agency's rights to assign work or whether it merely provides that employees be compensated for an activity that is a legitimate part of the workday. Because we are unable to determine the effect of that portion of the proposal, we have no basis for determining whether it is consistent with applicable law and regulation. The parties bear the burden of creating a record upon which the Authority can make a negotiability determination. See National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982), affirming National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). A party failing to meet this burden acts at its peril. See American Federation of Government Employees, AFL-CIO, Local 738 and Department of the Army, Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, 33 FLRA 380, 383-84 (1988). We will, therefore, dismiss the petition for review of the last sentence of Proposal 3.

Finally, the Union indicates that its proposals reflect the Agency's uniform policy currently in effect. However, even if the proposals merely reiterate existing policy, they would directly interfere with management's right under section 7106(b)(1) to determine the method and means of performing work. Inclusion of the Agency's policy in a negotiated agreement would infringe on the Agency's right to make changes in the way that the Agency prescribes the appropriate military uniform for civilian technicians during the life of the negotiated agreement. See, for example, Bremerton Metal Trades Council and Naval Supply Center, Puget Sound, 32 FLRA 643, 648 (1988); American Federation of Government Employees, AFL-CIO, Local 1858 and U.S. Army Ordinance Missile and Munitions Center and School (USAOMMCS), Redstone Arsenal, Alabama, 26 FLRA 102, 105 (1987).

For the reasons stated above, we find that Proposals 1 and 2 and the first sentence of Proposal 3 are inconsistent with the Agency's right under section 7106(b)(1) of the Statute to prescribe the military uniform. We are unable to determine the negotiability of the last sentence of Proposal 3 based on the information in the record.

III. Proposal 4

Cleanup Time -- Employees will be given 10 minutes of official time prior to lunch break and going home at the end of the day to cleanup.

A. Positions of the Parties

The Agency contends that Proposal 4 violates the Agency's right to assign work under section 7106(a)(2)(B) because it would prevent management from assigning duties to technicians during the time allotted for personal cleanup.

The Union states that Proposal 4 "was for washing hands and face, when required, and had nothing to do with changing to and from Military Uniform." Petition at 2. The Union asserts that the proposal does not excessively interfere with management's right to assign work. The Union cites U.S. Department of the Treasury, Bureau of Engraving and Printing, 31 FLRA 1250 (1988), where the Authority concluded that an arbitrator properly enforced a provision of the parties' agreement that set aside a time period for employees to clean up before lunch because that provision constituted an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis

Proposal 4 requires the Agency to provide employees with paid time before the lunch break and at the end of the workday to clean up. We find that Proposal 4 is nonnegotiable.

In International Brotherhood of Electrical Workers, Local 2080 and Department of the Army, U.S. Army Engineer District, Nashville, Tennessee, 32 FLRA 347, 363-65 (1988), the Authority found that a proposal which required the agency to provide employees time during their hours of duty to clean up directly interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute because it precluded the assignment of other types of work during the specified period. The Authority also found that the proposal was inconsistent with 5 U.S.C. § 6101, which requires that the basic workweek consist of 40 hours of "work." The Authority found that personal cleanup is a non-work activity and cannot be considered "work" or "employment" for purposes of fulfilling the requirement for a 40-hour week. The Authority concluded that Provision 6 in Department of the Army, U.S. Army Engineer District, Nashville, Tennessee was inconsistent with (1) management's rights under section 7106(a)(2)(B) because it precluded the assignment of work during specified periods and (2) Federal law because it required time set aside for non-work activity to be included in the 40 hours of "work" required by 5 U.S.C. § 6101. Department of the Army, U.S. Army Engineer District, Nashville, Tennessee, 32 FLRA at 365.

Proposal 4 in this case is identical in effect to Provision 6 in Department of the Army, U.S. Army Engineer District, Nashville, Tennessee. Proposal 4 requires the Agency to provide employees time during their hours of duty to clean up. The proposal would preclude the Agency from assigning work during the period set aside for personal cleanup. Therefore, we find that Proposal 4 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B). See National Association of Government Employees, SEIU, AFL-CIO and National Guard Bureau, Adjutant General, 26 FLRA 515, 515-17 (1987).

Proposal 4 also would require time set aside for a non-work activity--personal cleanup--to be included in the 40 hours of "work" required by 5 U.S.C. § 6101. Therefore, we find that Proposal 4 is inconsistent with Federal law and nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with the requirement in 5 U.S.C. § 6101 that the basic workweek consist of 40 hours of "work." See id. at 517; Department of the Army, U.S. Army Engineer District, Nashville, Tennessee, 32 FLRA at 365.

The Union asserts that Proposal 4 does not excessively interfere with management's right to assign work. In this regard, the Union cites U.S. Department of the Treasury, Bureau of Engraving and Printing, 31 FLRA 1250 (1988). We construe this assertion as a claim that the Union intends Proposal 4 to be an appropriate arrangement for employees adversely affected by the exercise of the Agency's right to assign work.

We reject any claim that Proposal 4 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. We have found that Proposal 4 is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with Federal law. Section 7106(b)(3) applies only when management exercises one of the reserved rights set out elsewhere in section 7106. Section 7106(b)(3) does not make negotiable a matter that is inconsistent with law. See American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1068 (1988), reversed as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, No. 88-7408 (9th Cir. Feb. 7, 1989).

The Union's citation to Bureau of Engraving and Printing is inapposite. In Bureau of Engraving and Printing, the agency agreed that personal cleanup after contact with toxic substances at the worksite is necessary for the employees' health and safety and was an activity which is a legitimate part of the workday. Therefore, unlike Proposal 4 in this case, the provision in Bureau of Engraving and Printing was not inconsistent with law because it required time set aside for a non-work activity to be included in the 40 hours of work required by 5 U.S.C. § 6101.

Further, even if the proposal in the case before us were not contrary to law, the Union's mere citation to Bureau of Engraving and Printing would not establish that Proposal 4 is an appropriate arrangement under section 7106(b)(3). To establish that a proposal constitutes an appropriate arrangement, the Union must demonstrate that the proposal seeks to ameliorate the adverse effects on employees of the exercise of management's rights and show that the benefits to employees provided in the proposal outweigh the burdens placed on the Agency and, therefore, do not excessively interfere with the Agency's rights. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986). The Union did not make such a showing in this case.

IV. Proposal 5

There will not be any mass searching of car[s], trucks, or other personal property of employees, unless this action can be proven to the Union President, before the action takes place.

A. Positions of the Parties

The Agency contends that Proposal 5 violates its right to determine its internal security practices under section 7106(a)(1) of the Statute. According to the Agency, "when necessary, the Agency conducts mass searches of property, including technicians' vehicles[,] for the purpose of safeguarding Government-owned equipment and facilities, as well as in the course of investigation of loss or theft of [G]overnment property." Statement at 5. The kinds of Government property and equipment that are present in the Agency's facilities include power and hand tools, firearms and other military equipment, and portable office equipment.

The Agency argues that the proposal would allow the Union President to determine whether a mass search of employees' vehicles or other personal property is justified. Because the proposal does not permit the Agency to determine independently that a search is required to safeguard its personnel and property, the Agency contends that the proposal would prevent the Agency from independently conducting the search and thereby violates the Agency's right to determine its internal security practices.

The Union states that, in the past, the Agency has conducted mass searches after the tour of duty. According to the Union, "[t]he supervisor who approved the mass search inflected [sic] his authority over personnel that he didn't supervise. Under mass search[e]s there has never been any government property found." Petition at 2. The Union asserts that the Agency has never published rules notifying employees that personal property, lockers, desks, and cars are subject to mass searches. The Union contends that the mass searches were not valid or work-related.

B. Analysis

We find that Proposal 5 is nonnegotiable because it directly interferes with the Agency's right to determine its internal security practices.

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 practices that are necessary to secure or safeguard its operations, personnel and physical property against internal or external risks.

See International Federation of Professional and Technical Engineers, Local 25 and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 33 FLRA 304 (1988). Proposals which expressly limit an agency's ability, as part of its internal security plan, to conduct searches directly interfere with the agency's rights under section 7106(a)(1) of the Statute. National Association of Government Employees, Local R4-6 and Department of the Army, Fort Eustis, Virginia, 29 FLRA 966 (1987) (Proposals 1 and 2); National Treasury Employees Union, Chapter 21 and Department of the Treasury, Bureau of Engraving and Printing, 18 FLRA 405 (1985) (Proposal 1).

Where there is a link or reasonable connection between an agency's goal of safeguarding personnel or property and its practice or decision designed to implement that goal, a proposal which substantively interferes with or negates the agency's practice or decision conflicts with the agency's right under section 7106(a)(1). See International Association of Machinists and Aerospace Workers Union and Department of the Treasury, Bureau of Engraving and Printing, 33 FLRA 711, 729-31 (1988) (Proposal 9).

In this case, based on the Agency's uncontroverted statements, we find that the Agency has demonstrated that there is a link between the Agency's practice of conducting searches of employees' property and its goal of safeguarding Government-owned equipment and facilities. Therefore, we will not review the Agency's determination that conducting searches is necessary to safeguard the Agency's property and facilities. See Department of the Navy, Mare Island, Naval Shipyard, Vallejo, California, 33 FLRA at 307.

Proposal 5 conditions the Agency's right to search employees' vehicles and other personal property on the approval of the Union President. Proposals which condition the exercise of an agency's rights under the Statute upon the agreement or permission of a union directly interfere with the agency's rights. See American Federation of Government Employees, Local 2761 and Department of the Army, Army Publications Distribution Center, St. Louis, Missouri, 32 FLRA 1006, 1010 (1988); International Association of Machinists and Aerospace Workers, Local 726 and Naval Air Rework Facility, North Island, San Diego, CA, 31 FLRA 158, 161-62 (1988).

Because Proposal 5 conditions searches of employee vehicles and personal property upon the prior approval of the Union President, the proposal directly interferes with the Agency's right to determine its internal security practices and is inconsistent with section 7106(a)(1) of the Statute. Therefore, the proposal is nonnegotiable. Compare American Federation of Government Employees, AFL-CIO, Local 1759 and Department of Defense, Department of the Army, Headquarters, Fort McPherson, Georgia, 29 FLRA 261, 264 (1987) (Proposal 2, providing that searches of personal belongings or employee lockers may be permitted only on the basis of reasonable suspicion, based upon specific objective facts and reasonable inferences drawn from those facts, is negotiable).

V. Order

The