48:1124(123)AR - - DOD, Defense Finance and Accounting Service, Indianapolis Center, Indianapolis, IN and AFGE, Local 1411 - - 1993 FLRAdec AR - - v48 p1124



[ v48 p1124 ]
48:1124(123)AR
The decision of the Authority follows:


48 FLRA No. 123

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF DEFENSE

DEFENSE FINANCE AND ACCOUNTING SERVICE

INDIANAPOLIS CENTER

INDIANAPOLIS, INDIANA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1411

(Union)

0-AR-2475

_____

DECISION

December 14, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Boris J. Speroff filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency did not file an opposition to the Union's exceptions.

The Union filed a grievance challenging the Agency's requirement that security guards wear a Department of Defense (DoD) police badge and shoulder insignia instead of a DoD security guard badge and shoulder insignia. The Arbitrator found that the grievance was not grievable and denied it.

We conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

According to the Union, the Agency maintains a security guard force for internal security at its facility in Building 1 at Fort Benjamin Harrison, Indiana. Military police are responsible for law enforcement throughout Fort Benjamin Harrison and for external security for Building 1. Initially, the Agency's security guards for building 1 wore DoD security guard badges and shoulder insignias. When the Agency directed the security guards to wear DoD police badges and shoulder insignias, the Union filed a grievance claiming that the wearing of DoD police badges and insignias instead of DoD security guard badges and insignias violated law and regulation. The grievance was not resolved and was submitted to arbitration.

Before the Arbitrator, the Agency argued that the grievance was not grievable or arbitrable for several reasons. The Agency asserted that the grievance was untimely filed and was barred by section 7116(d) of the Statute because of an earlier-filed unfair labor practice charge. The Agency also asserted that the grievance was not grievable because it concerned position classification matters and attempted to enforce limitations on management's right under section 7106(a)(1) of the Statute to determine its internal security practices. The Union argued that the grievance was timely filed and was not barred by section 7116(d). The Union also argued that the grievance was a proper subject for a grievance under the definition of "grievance" in section 7103(a)(9) of the Statute because the Union was claiming a violation of law and regulations concerning conditions of employment.

The Arbitrator found that the grievance was not barred by the earlier-filed unfair labor practice charge because the charge and the grievance involved different issues. The Arbitrator also found that the grievance was timely filed. The Arbitrator determined, in agreement with the Agency, that to the extent that the Union was claiming violations of Office of Personnel Management (OPM) classification standards and series, which distinguish between security guards and police officers, the grievance concerned the classification of a position and was not grievable and arbitrable. In finding that this claim was not grievable, the Arbitrator specifically noted that the Union sought as a remedy for the alleged violation of the classification standards an order to "convert Building 1 Security Guards GS-085 into Building 1 Police Force GS-083 series . . . ." Award at 5-6 (quoting Union's remedy request).

The Arbitrator examined the Union's remaining claim that the Agency's requirement was contrary to law, and found that a grievance on this claim was precluded because the designation of uniform badges and insignias for the security force concerned the Agency's determination of internal security practices. The Arbitrator based this conclusion on his finding that the exercise by the Agency of its management right under section 7106(a)(1) of the Statute was not in any way limited by the parties' collective bargaining agreement. Accordingly, the Arbitrator denied the grievance.

III. First Exception

A. Union's Contentions

The Union contends that the Arbitrator misinterpreted management's rights under the Statute when he found the Union's claim not grievable under the Statute. The Union argues that, under the Statute, all management rights must be exercised in accordance with law and regulation. Specifically, the Union asserts that the Arbitrator erred by not finding that the Agency's requirement that security guards wear DoD police badges and insignias is contrary to Indiana law because it requires the guards to impersonate police officers and expose themselves to liability for such impersonation. The Union maintains that the Arbitrator merely "rubber stamp[ed]" management's actions and ignored its claim that the Agency's requirement was not based on internal security, but rather was based on the supply policies of local uniform vendors. Exceptions at 5.

B. Analysis and Conclusions

We conclude that the Union provides no basis for finding deficient the Arbitrator's determination that the Union's claim, alleging that the Agency's requirement was contrary to law, was not grievable under the Statute.

In ruling that this claim was not grievable, the Arbitrator concluded that the designation of the uniform badges and insignias of its security personnel concerned the determination by the Agency of its internal security practices. In contending that the award is deficient, the Union fails to establish otherwise. Management's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the rights to determine the policies and practices that are part of an agency's plan to secure and safeguard its personnel and physical property and to prevent the disruption of the agency's activities and operations. For example, American Federation of Government Employees, AFL-CIO, National Archives and Records Administration Council of AFGE Locals (Council 1260) and National Archives and Records Administration, 31 FLRA 878, 880 (1988) (NARS). When there is a link or reasonable connection between an agency's goal of safeguarding personnel or property or of preventing disruption of agency operations and the disputed practice, we will find that the disputed practice constitutes the exercise by management of its right under section 7106(a)(1) to determine its internal security practices. See, for example, NARS, 31 FLRA at 880-81. The Agency argued, and the Arbitrator found in this case, that the designation of uniform badges and insignias for its security personnel concerned the Agency's internal security practices. Despite the Union's argument that there may have been a uniform supply basis to the Agency's determination, we conclude that there is a reasonable connection between the Agency's requirement that its security guards wear DoD police badges and shoulder insignias and the Agency's right to determine its internal security practices. See id. (agency's requirement that certain employees wear blazers and name tags as a deterrent to illegal conduct concerned the agency's internal security practices under section 7106(a)(1) of the Statute).

Because we find that the Arbitrator correctly determined that the Agency's requirement concerned the exercise of a management right under section 7106(a)(1) of the Statute, we conclude that the Union provides no basis for finding deficient the Arbitrator's ruling that the Union's claim, alleging that the requirement was contrary to law, was not grievable under the Statute.

In both the decision and the decision on reconsideration in American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068 (1990), decision on reconsideration, 39 FLRA 1241 (1991) (Department of Education), reversed on other grounds sub nom. U.S. Department of the Interior Minerals Management Service v. FLRA, 969 F.2d 1158 (D.C. Cir. 1992), we discussed in detail the grievability of grievances contending that the exercise of a management right under section 7106(a) was contrary to law or regulation. We noted that in Department of the Treasury, Internal Revenue Service v. FLRA, 494 U.S. 922, 924 (1990) (IRS), the U.S. Supreme Court made clear that some external limitations on management rights under section 7106(a) are enforceable in arbitration. In IRS, the Court recognized that, unlike the framework for grievances and arbitration in the private sector, in the Federal sector a collective bargaining agreement must provide for procedures for the settlement of grievances, which are defined to include any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment. The Court examined this scheme and concluded that, with respect to management rights under section 7106(a)(2) of the Statute, the negotiated grievance procedure is available to unions and employees to enforce external limitations contained in "applicable laws." 494 U.S. at 931 (quoting section 7106(a)(2)).

In Department of Education, however, we noted that the literal wording of section 7106(a)(1) does not contain a requirement, as does section 7106(a)(2), that management exercise the rights enumerated in section (a)(1) "in accordance with applicable laws." 38 FLRA at 1076 (quoting section 7106(a)(2)). In view of the lack of such prefatory language in section 7106(a)(1) and in view of the decision in IRS, we concluded that the Statute does not require management to exercise its rights under section 7106(a)(1) in accordance with applicable laws. Accordingly, we held that the Statute, standing alone, does not empower unions to file grievances to enforce any limitations on the exercise of management's rights under section 7106(a)(1), including those contained in laws and regulations. We indicated that the only basis available under the Statute to allow such grievances would be for the parties to agree to an appropriate arrangement under section 7106(b)(3) of the Statute requiring the Agency to exercise its rights under section 7106(a)(1) in accordance with external limitations on the exercise of those rights. We affirmed that holding on reconsideration. 39 FLRA at 1244-45.

In this case, the Arbitrator determined that there was no provision in the parties' agreement limiting the Agency's exercise of its internal security right under section 7106 of the Statute. Therefore, we find that the Arbitrator correctly determined that the Union's claim, alleging that the wearing of DoD police badges and insignias was contrary to law, was not grievable and that no basis is provided for finding the award deficient, as alleged by the Union. Accordingly, we will deny the Union's exception.

IV. Second Exception

A. Union's Contentions

The Union contends that the award is deficient because the Arbitrator failed to address OPM classification standards distinguishing between the police officer series, GS-083, and the security guard series, GS-085. The Union argues that the standards are Government-wide regulations and that they do not authorize the combining of the security guard and police officer positions.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the award is deficient by failing to address OPM classification standards. The Arbitrator failed to address OPM classification standards based on his determination that the grievance was not grievable or arbitrable to the extent that the Union was relying on OPM classification standards to dispute whether the security personnel were properly classified as security guards. In so ruling, the Arbitrator specifically noted that as a remedy for the alleged violation of classification standards, the Union sought an order converting the classification of the Agency's security guards from the security guard series to the police officer series.

Section 7121(c)(5) of the Statute precludes grievances concerning the classification of any position unless the employee has suffered a reduction-in-grade or pay. In U.S. Department of Veterans Affairs Medical Center, Muskogee, Oklahoma and American Federation of Government Employees, Local 2250, 47 FLRA 1112 (1993), we recognized that the term "classification" is defined as "the analysis and identification of a position and placing it in a class under the position-classification plan established by [OPM] under chapter 51 of title 5, United States Code." Id. at 1116 (quoting 5 C.F.R. § 511.101(c)). We find in agreement with the Arbitrator that when, as in this case, the substance of a claim in a grievance concerns the class and series in which a position should be placed under OPM classification standards, the grievance concerns the classification of a position within the meaning of section 7121(c)(5) of the Statute and is not grievable or arbitrable under the Statute. Because we find that the Arbitrator correctly determined that the grievance was not grievable or arbitrable to the extent it alleged a violation of OPM classification standards, we conclude that the Union provides no basis for finding deficient the Arbitrator's failure to consider OPM classification standards. Accordingly, we will deny the Union's exception.

V. Third Exception

A. Union's Contentions

The Union states that it filed a motion with the Arbitrator to strike the Agency's post-hearing brief "because it was not served in accordance with established procedures of 'certification of service.'" Union's Motion To Strike at 2 (emphasis deleted). The Union contends that the Arbitrator was obligated to make a ruling on its motion, but that, instead, the Arbitrator accepted the Agency's post-hearing brief into the record without addressing the motion to strike. The Union asserts that such action by the Arbitrator "has poisoned the award." Exceptions at 4.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the award is deficient. We find that implicit in the Arbitrator's acceptance of the Agency's post-hearing brief is his rejection of the Union's motion to strike, and we find that the Union provides no basis for finding that such implicit rejection is deficient.

In its motion to strike filed with the Arbitrator, the Union notes that the Arbitrator agreed to the acceptance of post-hearing briefs from the parties and established "5 May 1993 as due date for briefs to be submitted." Union's Motion To Strike at 2. The Union attached to its motion the last page of the Agency's post-hearing brief, which shows a submission date of May 5, 1993, and the Union does not assert that the Agency's post-hearing brief was not properly submitted to the Arbitrator on that date. Instead, the Union asserts that the Agency's brief was not "received" by the Union until May 6. Id. In explaining why it was not received until May 6, the Union notes that the Agency's representative attempted to personally deliver the brief to the Union at its office at 8 p.m. on May 5. Because no one was at the office, the representative left a copy of the brief at the back door of the Union's office and left a message on the Union's answering machine stating that the brief was at the door. In these circumstances, the Union claims that the brief was not received by the Union until a Union representative arrived at the office on the morning of May 6.

We are not persuaded on these facts that the Arbitrator's acceptance of the Agency's post-hearing brief is deficient. The Union does not dispute that the brief was properly submitted to the Arbitrator. In view of the Union's concession in its motion to the Arbitrator that the brief was left at the Union's office on May 5, we find that the Union fails to establish that the Agency's service of its brief on the Union failed "to comply with the [A]rbitrator's instruction which both parties had accepted and agreed to." Id. Accordingly, we will deny the Union's exception.

VI. Decision

The Union's exceptions are denied.