45:1121(111)NG - - NFFE Local 1214 and Army HQ, Training Center and Fort Jackson, SC - - 1992 FLRAdec NG - - v45 p1121



[ v45 p1121 ]
45:1121(111)NG
The decision of the Authority follows:


45 FLRA No. 111

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1214

(Union)

and

U.S. DEPARTMENT OF THE ARMY

HEADQUARTERS, U.S. ARMY TRAINING CENTER

AND

FORT JACKSON

FORT JACKSON, SOUTH CAROLINA

(Agency)

0-NG-2024

DECISION AND ORDER ON NEGOTIABILITY ISSUES

September 4, 1992

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) and concerns the negotiability of two proposals relating to bargaining unit firefighters in the Agency's Fire Prevention and Protection Division.*/

Proposal 1 would require the Agency to allow firefighters to eat their meals at base dining facilities that are outside of the fire station and to use the Agency's response vehicles for transportation to those facilities. Proposal 2 provides that firefighters should not be assigned duties that are unrelated to their position or regular field of work.

For the following reasons, we find that both proposals are nonnegotiable.

II. Proposal 1

The Employer agrees to provide access to FJ (Fort Jackson) dining facilities to all firefighters who wish to take their meals outside of the FJ Fire Prevention and Protection Division. Dining facilities will be utilized only during appropriate or designated meal times, and when response vehicles and proper communications are used concurrently with such access.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 1 is nonnegotiable because it interferes with management's rights under: (1) section 7106(a)(1) of the Statute to determine its internal security practices by "rais[ing] a number of situations that could disrupt the fire fighting services of the [Agency] and, as such, hav[ing] detrimental impact on the [Agency's] property and personnel"; and (2) section 7106(a)(2)(A) of the Statute to assign employees by "requir[ing] that management reassign certain duties to employees based on their decision as to where they will be eating lunch[.]" Statement of Position at 3-4. The Agency also argues that the proposal is contrary to 31 U.S.C. ° 1344 because it "contemplates the use of [Government vehicles] for other than official purposes." Petition, Enclosure 1.

The Agency notes that its fire department has "responsibility for a population of over 20,000 individuals and covers a geographic area of approximately 53,000 acres." Statement of Position at 2. The Agency states that, in addition to fighting fires and responding to calls for help, firefighters are responsible for "fire inspections, maintenance and testing of sprinkler systems, fire extinguishers, and fire hydrants" as well as "station, ground and vehicle maintenance." Id. Further, the Agency states that the firefighters work 24-hour shifts and "[n]ormally" work 13 firefighters to a shift "grouped into teams as part of an engine company or other response team with each employee responsible for particular duties as part of that team." Id. The Agency also states that, normally, firefighters eat their lunches at the fire station. However, the Agency notes that "when there is a demand for take out food, one [firefighter] is allowed to pick up the food, using his or her own private vehicle, and bring the food back to the station house." Id.

The Agency asserts that "[t]he proposal, as written, requires that any [firefighter] wishing to leave the fire station for lunch be allowed to do so." Id. at 4. Further, the Agency assert that "at every lunch where a [firefighter] wants to go out [to lunch], he or she will have to be authorized a response vehicle." Id. As such, with respect to its contention that proposal conflicts with its right to assign employees, the Agency argues that, in the event that the Agency was required to respond to a fire during the lunch period, the proposal would require it to reassign firefighters to different teams with different assignments if some team members decided to go out to lunch while other team members decided to eat lunch in the fire station.

Regarding its contention that the proposal conflicts with its right to determine its internal security practices, the Agency argues that because "any number of response vehicles" could be used by firefighters going to lunch, delays in the vehicles' response time could result, causing "extensive amount of unnecessary damage to [G]overnment property or personnel." Id. at 4, 5. Accordingly, the Agency asserts that because the proposal could result in disruption delaying the vehicles' response time, or "having a [firefighter] stranded and unable to be assigned to another emergency, [the proposal] violates the [A]gency's internal security practices and the right to assign employees." Id. at 5.

With respect to its contention that Proposal 1 violates 31 U.S.C. ° 1344, the Agency claims the Authority found nonnegotiable a proposal containing "[a] similar issue" in National Association of Government Employees, Local R12-33 and U.S. Department of the Navy, Pacific Missile Test Center, Point Mugu, California, 40 FLRA 479, 488-91 (1991) (Pacific Missile Test Center). The Agency argues that under Proposal 1, the firefighters "will determine which employees leave the fire station to go out for lunch" and, further, the firefighters "would not be performing work while they were traveling to the dining facility or while they were there." Statement of Position at 6. The Agency contends that, under the proposal, the "sole purpose" for the use of the Government vehicles is for obtaining meals and, therefore, such a purpose cannot be considered "an 'official purpose' if management has no authority in determining who or how many" firefighters will be authorized to use the vehicle. Id. Accordingly, the Agency argues that because the proposal "'does not present a situation where employees are in a travel status or at a temporary duty station where the use of a Government vehicle to obtain meals or for other purposes could fall within 31 U.S.C. ° 1344[,]'" the proposal is nonnegotiable. Id. (quoting Pacific Missile Test Center, 40 FLRA at 491).

2. Union

The Union did not file a response to the Agency's statement of position. In its petition for review, the Union states that Proposal 1 is intended to provide firefighters, "when [they] . . . elect to occasion [sic] a dining facility in lieu of preparing their own meals[,]" an "additional option to preparing their own meals." Petition at 2. The Union states that "[s]uch occasions would normally be incident to 'call to duty' situations, overtime requirements . . . , general medical, physical and emotional disposition of the firefighter, etc." Id.

The Union disputes the Agency's contention that Proposal 1 violates 31 U.S.C. ° 1344 because it would permit firefighters to use the response vehicles for other than official purposes. The Union claims that "the Agency has allowed such vehicles to be utilized for other than official purposes . . . ." Id. The Union argues that because the firefighters are in a duty status for 24 hours every other day, they should be permitted to use the Government vehicles for the reasons stated in the proposal.

III. Analysis and Conclusions

Proposal 1 requires the Agency to provide firefighters who choose to eat their meals outside of the fire station with access to all base dining facilities. Proposal 1 also requires that the Agency authorize firefighters who choose to eat in such facilities to drive Government response vehicles to and from those facilities and to carry communications equipment.

For the following reasons, we find that Proposal 1 directly and excessively interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute and conclude, therefore, that the proposal is nonnegotiable.

A. Proposal 1 Directly Interferes with the Agency's

Right to Determine Its Internal Security Practices

The Authority has consistently held that an agency's right to determine its internal security practices under section 7106(a)(1) of the Statute includes those policies and actions that are part of the agency's plan to secure or safeguard its personnel, physical property, and operations against internal and external risks. See Department of the Navy, Navy Ships Parts Control Center, Mechanicsburg, Pennsylvania and American Federation of Government Employees, Local 1156, 44 FLRA 728, 730 (1992). Where an agency demonstrates that there is a reasonable link between its goal of protecting its property and a policy designed to implement that goal, a proposal that negates the agency's policy directly interferes with the agency's right to determine its internal security practices. Id. In determining the negotiability of a proposal that arguably interferes with the agency's right to determine its internal security practice, the Authority will not inquire into the extent of the measures employed to achieve the objective as long as they reasonably relate to the purpose for which the particular plan or practice was adopted. See National Treasury Employees Union and U.S. Department of Energy, Washington, D.C., 38 FLRA 79, 84 (1990).

The Agency's firefighting operation is clearly an internal security practice because the operation is used by the Agency to protect and safeguard its personnel and property from fire by preventing and extinguishing fires. As part of its firefighting operations, the Agency requires that firefighters eat their lunch at the fire station in order to protect against the "unnecessary disruption" to its firefighting operation. Statement of Position at 4. According to the Agency's uncontroverted statements, "[u]nder normal circumstances, it can be expected that those [firefighters] eating at the fire station will arrive at the fire first"; "[w]aiting for the other [firefighters] to arrive wastes valuable time and causes additional damage to the installation property and personnel." Id. In our view, the Agency has shown a sufficient link between its goal of safeguarding personnel and property and its requirement that firefighters remain at the fire station during lunch times.

The Union states that the proposal is intended to allow firefighters, at their election, to leave the fire station and eat their meals at an Agency dining facility. The proposal also allows any firefighter who chooses to eat outside of the fire station at the facilities to drive a response vehicle to and from these facilities. As worded, Proposal 1 would not limit the number of firefighters or Agency response vehicles that could be away from the fire station during meal times. This interpretation of the proposal is not contradicted by the Union. Therefore, we find that Proposal 1 limits the Agency's ability to determine how many firefighters or response vehicles will remain at the Agency's fire station during the firefighters' meal times.

Although the proposal limits the firefighters' use of the dining facilities to "appropriate or designated meal times," management would still be precluded at such times from determining how many response vehicles or which firefighters will leave the fire station. By prescribing a policy which would restrict management's determination of how many of its firefighters and response vehicles would be available during meal times, the proposal restricts the Agency's ability to coordinate the availability and use of its firefighting resources. Therefore, we conclude that the proposal directly interferes with the Agency's right under section 7106(a)(1) of the Statute to determine its internal security practices.

B. Proposal 1 Does Not Constitute An Appropriate

Arrangement Within the Meaning of Section

7106(b)(3) of the Statute

In determining whether a proposal is negotiable as an appropriate arrangement for adversely affected employees under section 7106(b)(3) of the Statute, the Authority first determines whether the proposal is intended as an arrangement for employees adversely affected by the exercise of a reserved management right. Once the Authority determines that the proposal is intended as an arrangement, the Authority determines whether the proposed arrangement is appropriate or whether it is inappropriate because it excessively interferes with management's rights. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (KANG).

We note that the Union did not specifically contend that the proposal was intended as an appropriate arrangement under section 7106(a)(3) of the Statute. However, we further note the Union's claim that the proposal would benefit employees by permitting them during certain times to eat their meals outside of the fire station. As such, we find that Proposal 1 is intended as an arrangement for employees who are adversely affected by management's exercise of its right to determine its internal security practices through the establishment of a policy requiring firefighters to eat their lunch at the fire station. However, the record does not establish that the benefit afforded to employees by the proposal would outweigh the negative effect on the Agency's right to determine its internal security practices. Specifically, there is no evidence in the record to demonstrate that the benefit to firefighters of permitting them to dine at base dining facilities whenever they choose to do so is sufficient to outweigh the burden of requiring the Agency to accept the risk of a diminished capacity to respond to a fire or other emergency. Consequently, we conclude that the proposal excessively interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.

Accordingly, because Proposal 1 directly and excessively interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute, we conclude that it is nonnegotiable. In light of this conclusion, we need not address the Agency's additional contentions that Proposal 1 interferes with its right to assign employees and that the proposal is inconsistent with 31 U.S.C. ° 1344.

IV. Proposal 2

The Employer agrees that GS-0081 Firefighters should not be required to perform duty assignments outside their position description, related duties, and/or regular field of work.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 2 is nonnegotiable because it is interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency claims that, under the proposal, "all duties that are outside the position description, related duties and/or regular field of work, cannot be assigned." Statement of Position at 7-8. The Agency argues that this limitation is not just restricted to "duties which inherently present a threat of injury" to firefighters, but rather, includes "all unrelated duties . . . ." Id. at 8. Relying on Authority precedent, the Agency argues that "[m]anagement's right 'to assign work' under section 7106(a)(2)(B) includes the right to determine the particular duties to be assigned and the particular employee to whom or position to which the duties will be assigned." Id. at 7. Further, the Agency asserts that proposals which seek to limit the duties that management can assign an employee are nonnegotiable.

The Agency contends that Proposal 2 is not an appropriate arrangement under section 7106(b)(3) of the Statute because the proposal excessively interferes with its right to assign work. The Agency asserts that the Union has not explained "how occasional assignments of duties not related to the employees' job series negatively impacts on the employees to such a degree as to warrant a complete prohibition" on the assignment of duties that are unrelated to firefighter positions. Id. at 9. The Agency disputes the Union's contention that the proposal "is intended to ameliorate the adverse consequences of duties which inherently present a threat of injury" to the firefighters. The Agency argues that the proposal "goes well beyond this objective by prohibiting the assignment of all duties which are not job related--not just those duties which present a threat of injury." Id. (emphasis in original).

2. Union

As noted above, the Union did not file a response to the Agency's statement of position. In its petition for review, the Union contends that Proposal 2 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. The Union states that the proposal was not intended "to limit the Agency's right to assign work that is consistent with those duties normally associated with the Firefighter (GS-0081) classification series, but rather an attempt to ameliorate the adverse consequences of work assignments that are totally unrelated to the subject series, and that inherently present a threat of injury to the firefighters." Petition at 2. In addition, the Union states that "some of the duties currently assigned to the firefighters in question, are duties that are normally performed by skilled employees under the Federal Wage System." Id.

V. Analysis and Conclusions

Proposal 2 provides that management should not assign firefighters duties that are outside of their position description or that are unrelated to their duties or regular field of work. In this regard, the Union notes that "some of the duties currently assigned to firefighters . . . are duties that are normally performed by skilled employees under the Federal Wage System." Petition at 2-3.

For the following reasons, we find that Proposal 2 directly and excessively interferes with management's right to assign work and conclude, therefore, that the proposal is nonnegotiable.

Proposals that restrict an agency's ability to assign particular duties to employees directly interfere with management's right to assign work under section 7106(a)(2)(B). See American Federation of Government Employees, Local 1658 and U.S. Department of the Army, Army Tank-Automotive Command, Warren, Michigan, 44 FLRA 1375, 1387 (1992). Moreover, proposals requiring that management "should" exercise its rights under section 7106 of the Statute in a certain manner constitute substantive limitations on the exercise of those rights. See, for example, National Federation of Federal Employees, Local 1461 and Department of the Navy, U.S. Naval Observatory, 26 FLRA 808, 809-10 (1987). Proposal 2 provides that management should not require GS-0081 firefighters to perform work that is outside their position description. Consequently, because the proposal would preclude management from assigning certain duties to those firefighters, it directly interferes with its right to assign work.

The Union contends that the proposal is an appropriate arrangement. As noted above, to determine whether a proposal constitutes an appropriate arrangement, the Authority must first determine whether the proposal is intended to be an arrangement for employees adversely affected by an exercise of a management right. Further, if the proposal is an arrangement, the Authority then determines whether the arrangement is appropriate, or whether it is inappropriate because it excessively interferes with management's rights. KANG, 21 FLRA at 31-33.

The Union asserts that the proposal is "an attempt to ameliorate the adverse consequences of work assignments that are totally unrelated to the subject series, and that inherently present a threat of injury to the firefighters." Petition at 2. Based on the Union's statement, we find that the proposal is intended as an arrangement for firefighters adversely affected by the Agency's assignment of duties that are unrelated to their position descriptions and outside of their regular field of work. Accordingly, we find that the proposal constitutes an arrangement within the meaning of section 7106(b)(3) of the Statute.

Having found that the proposal constitutes an arrangement, we next determine whether the proposed arrangement is appropriate within the meaning of section 7106(b)(3) or whether it excessively interferes with management's rights under the Statute.

We note the Union's contention that the proposal is "an attempt to ameliorate the adverse consequences of work assignments . . . that inherently present a threat of injury to the firefighters." Petition at 2. The Agency claims, however, without dispute by the Union, that the Union's proposal is not limited to those duties which present a threat of injury, but "goes well beyond this objective by prohibiting the assignment of all duties which are not job related[.]" Statement of Position at 9 (emphasis in original). By its terms, Proposal 2 prevents management from assigning duties to firefighters that are "outside their position description, related duties, and/or regular field of work." Consequently, the Union's explanation of the meaning of the proposal is inconsistent with the plain wording of that proposal. We will not adopt an explanation of a proposal that is inconsistent with the plain wording of that proposal. See National Association of Government Employees, Federal Union of Scientist and Engineers, Local R1-144 and U.S. Department of the Navy, Naval Underwater System Center, Newport, Rhode Island, 42 FLRA 730 (1991).

Additionally, as the Union did not file a response to the Agency's statement of position, the Union offers no further explanation to support the contention that the proposal is limited to those "unrelated duties" which inherently present a threat of injury to the firefighters. It is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982), aff'g 6 FLRA 574 (1981). A party failing to meet this burden acts at its peril. Therefore, we conclude that the proposal is intended to prevent the assignment of all duties outside the firefighter's position, related duties, or regular field of work.

Although the record establishes that Proposal 2 benefits employees by restricting management's ability to assign unrelated duties to the firefighters, the record does not establish that such a benefit would be so significant as to outweigh the burden of the broadly worded limitation placed on management. Specifically, the record contains no evidence as to whether and the extent to which unit employees are assigned duties unrelated to their positions, the nature and frequency of such assignments, or the effect that such assignments have on unit employees and on their ability to perform the regular duties of their positions. Therefore, we conclude that the proposal excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and is nonnegoti