38:0010(2)NG - - Service Employees Intl. Union, Federal Employees Metal Trades Council of Charleston, Local 696 and Dept. of Navy, Naval Station, Charleston, S.C. - - 1990 FLRAdec NG - - v38 p10
[ v38 p10 ]
The decision of the Authority follows:
38 FLRA No. 2
FEDERAL LABOR RELATIONS AUTHORITY
SERVICE EMPLOYEES INTERNATIONAL UNION
FEDERAL EMPLOYEES METAL TRADES COUNCIL OF CHARLESTON
U.S. DEPARTMENT OF THE NAVY
CHARLESTON, SOUTH CAROLINA
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
November 2, 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 by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The Union seeks review of the allegation by the Agency that one proposal is nonnegotiable. The proposal requires the Agency to withdraw its procedure requiring civilian security guards to salute military officers and cars identified with officer decals.
For the following reasons, we find that the proposal directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute and, therefore, is nonnegotiable.
II. The Proposal
Saluting is an exchange between ranked military personnel. Further, it is the position of the Council that the proposed saluting procedures: (1) represent a requirement of deference and rendering of tribute from civilians to the military [that is an] anathema to the long-held traditions of the United States as a civilian-ruled democratic society; (2) [are] unauthorized by either law, rule, or regulation; and (3) unjustifiably discriminate in that [they] single out civilian security personnel without a rational basis.
In light of the foregoing, the Council respectfully proposes the withdrawal of the proposed Procedures for Hand Salutes by All DoD Security Personnel Standing in a Duty Status for all members of the Council's collective bargaining units as said procedures are an unwarranted, unprecedented, unauthorized, inappropriate, and an ill-advised exercise of management[']s rights under the Civil Service Reform Act of 1978, as amended, the Constitution of the United States, and the traditions of the United States as a civilian-ruled democratic society.
III. Positions of the Parties
A. The Agency
The Agency contends that the proposal interferes with its right to assign work under section 7106(a)(2)(B) because it "would prevent the [A]gency from assigning employees the duty of saluting military officers and vehicles identified with officer decals." Agency's Statement of Position at 3. In this regard, the Agency refers to several Authority decisions finding proposals to be nonnegotiable because they interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency notes that the Authority has previously found that
the right to assign work to employees or positions includes the right to assign general continuing duties, to make specific periodic work assignments to employees, to determine when such assignments will occur and to determine when the work which has been assigned will be performed.
Id. at 3, citing National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), affirmed sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982).
The Agency also notes that in National Federation of Federal Employees, Local 1622 and Department of the Army, Headquarters, Vint Hill Farms Station, Warrenton, Virginia, 16 FLRA 578 (1984), the Authority found nonnegotiable a proposal "expressly preventing the [a]gency from requiring employees to perform certain duties when the duties to be assigned are outside the employee's regular field of work or are inappropriate to the employee's position[.]" Agency's Statement of Position at 3. The Agency concludes that the instant case more clearly involves a violation of management's right under section 7106(a)(2)(B) because the duties assigned in this case "are not outside the employee's regular field of work nor are they inappropriate to the employee's position." Id. The Agency further cites to Authority decisions finding nonnegotiable: (1) a proposal stating, in part, that "[a]t 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," American Federation of Government Employees, AFL-CIO, Local 2302 and U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, 19 FLRA 778, 781 (1985) (Proposal 2, part IV); and (2) a proposal that would prevent management from assigning duties not "within the general framework of the employee's current position description," National Association of Government Employees, SEIU, AFL-CIO and State of Connecticut, Adjutant General Office, 27 FLRA 801, 803-05 (1987) (Proposal 2).
The Agency also argues that the proposal interferes with its right to direct employees under section 7106(a)(2)(A) of the Statute. The Agency states that, according to Authority precedent, the "rights to direct employees and assign work encompass the determination of the quantity, quality, and timeliness of work production to be required of employees" and that a proposal requiring "an adjustment in production expectations places a substantive limitation on the agency's discretion to determine the quantity, quality, and timeliness of work production to be required of employees" and, therefore, "interferes with the agency's rights to direct employees and assign work[.]" Agency's Statement of Position at 4, 5. The Agency further states that the Authority has found that the right to direct employees includes the right "to supervise and guide them in the performance of their duties on the job." Id. at 4.
Applying that reasoning to this case, the Agency contends that "requiring security personnel manning the entry gates of a military base to salute military officers or vehicles identified by officer decals directly relates to the quality of work production required of such employees." Id. at 5 (emphasis in original). The Agency further contends that the saluting "requirement results from management's right to 'guide' . . . employees in the performance of their work as security guards." Id.
Moreover, the Agency asserts that the "intent of the requirement is to render proper respect to the military who are in command of the base, thus improving the image of the security force in the eyes of the military and the public with which they deal on a daily basis." Id. Although the Agency states that "saluting is an informal performance expectation[,] in contrast to a formal production expectation as established in a performance standard," the Agency maintains that because the "proposal prevents the [A]gency from establishing an informal production standard that concerns the quality of work to be performed[,] . . . it must be held to interfere with management's right to direct employees and assign work[.]" Id.
B. The Union
The Union contends that it "seeks to have management withdraw its proposal to require civilian security personnel to salute military officers and vehicles containing officer decals" because "there is no proper statutory or regulatory basis for such a requirement" and because the "requirement has no reasonable relationship to the work of the subject civilian security personnel." Union's Petition for Review at 2. In this regard, the Union states that bargaining unit employees provide security for the Agency's Naval Base in Charleston, South Carolina 24 hours a day, 7 days a week. The Union further notes that the employees "control all access gates, patrol on foot and in vehicles both on land and in water, protect all docked ships and other property and persons within the confines of the Naval Base." Id. Because the Naval Base is a nuclear facility, the Union states that "subject bargaining unit members are trained in anti-terrorist tactics which are regularly drilled." Id.
The Union did not file a response to the Agency's statement of position.
IV. Analysis and Conclusion
For the following reasons, we conclude that the proposal interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute and, therefore, is nonnegotiable.
A provision or proposal that precludes management from requiring employees to perform certain duties or restricts management's ability to assign the duties interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, National Federation of Federal Employees, Local 1655 and Department of Military Affairs, Illinois Air National Guard, 35 FLRA 815, 818-19 (1990) (Proposals 1-4, 6) (Illinois Air National Guard) (proposals imposing conditions on, restricting, or prohibiting the assignment of work to employees were found to be nonnegotiable); and American Federation of Government Employees, AFL-CIO, Local 1815 and Army Aviation Center, Fort Rucker, Alabama, 28 FLRA 1172, 1188-90 (Provision 8) (Chairman Calhoun concurring in part and dissenting in part) (Fort Rucker) (provision providing, in part, that "[i]nsofar as possible employees will not be assigned incidental duties which are inappropriate to their positions and qualifications . . . ." was found to be nonnegotiable because it interfered with management's right to assign work).
The Union argues that "there is no proper statutory or regulatory basis" for requiring civilian security guards to salute military officers and cars identified with officer decals and that the "requirement has no reasonable relationship to the work of the subject civilian security personnel." Union's Petition for Review at 2. In this regard, the Union notes, in part, that the security guards "control all access gates" and "protect all . . . persons within the confines of the Naval Base." Id. As previously noted, however, the Agency states that the intent of its saluting requirement is to have its security guards "render proper respect to the military who are in command of the base, thus improving the image of the security force in the eyes of the military and the public with which they deal on a daily basis." Agency's Statement of Position at 5. The Union does not dispute the assertion that, as part of their duties, the security guards must interact with military officials and members of the public. In fact, the Union notes that the security guards control all access gates and protect all persons within the confines of the Naval Base. Further, the record indicates that the Agency's saluting requirement applies to the security guards only when they are in uniform. See Union's Petition for Review, Attachment 3 at 2.
Accordingly, we reject the Union's argument that the Agency's saluting requirement is not authorized by statute or regulation and has no reasonable relationship to the security guards' work. Instead, we find that requiring uniformed civilian security guards to salute military officers and cars identified with officer decals constitutes an exercise of the Agency's section 7106(a)(2)(B) right to assign work. As the proposal expressly prohibits the Agency from requiring the security guards to salute, we find that the proposal prevents the Agency from assigning a particular duty and, thus, directly interferes with its section 7106(a)(2)(B) right to assign work. See Illinois Air National Guard and Fort Rucker.
The Union does not claim that the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Union does not specifically raise section 7106(b)(3), and nothing in the record relates to whether the proposal is intended to be an arrangement for adversely affected employees or whether it excessively interferes with the exercise of a management right. See Illinois Air National Guard, 35 FLRA at 820; and