National Federation of Federal Employees, Local 1214, Federal District 1, International Association of Machinists and Aerospace Workers (Union) and United States, Department of the Army, Army Training Center and Fort Jackson, Fort Jackson, South Carolina, (Agency)

[ v58 p601 ]

58 FLRA No. 151

NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1214, FEDERAL DISTRICT 1
INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE WORKERS
(Union)

and

UNITED STATES
DEPARTMENT OF THE ARMY
ARMY TRAINING CENTER AND FORT JACKSON
FORT JACKSON, SOUTH CAROLINA
(Agency)

0-NG-2700

_____

DECISION AND ORDER
ON A NEGOTIABILITY ISSUE

June 30, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

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), and concerns the negotiability of one proposal relating to personally owned firearms of civilian police officers. The Agency filed a statement of position to which the Union filed a response, and the Agency filed a reply to the Union's response.

      For the reasons that follow, we find the proposal to be outside the duty to bargain, and accordingly, dismiss the petition for review.

II.     The Proposal

That any civilian Police Officer of the Fort Jackson Law Enforcement Activity, or its follow on named activity, be allowed to carry a personal owned firearm into and out of Fort Jackson without fear of prosecution as long as they do not improperly handle or use said weapons. The weapon shall not be worn during duty time.

III.     Meaning of the Proposal

      The parties agree that the proposal would permit civilian police officers to bring personally owned firearms into and out of the Fort Jackson installation, whether reporting for work or for personal reasons, so long as they do not carry the firearms while on duty. The parties also agree that the proposal would permit these employees to store the firearms on installation property wherever they believe it is appropriately secure to do so, so long as such storage is consistent with South Carolina law.

IV.     Positions of the Parties

A.     Agency

      The Agency contends that the proposal is outside the duty to bargain because it does not involve bargaining unit employees' conditions of employment. In this regard, the Agency states that the police officers draw their Agency-issued weapons from, and return them to, a weapons room located on the installation and pursuant to an Agency memorandum, may use such weapons only during the 10-hour shifts for which they have law enforcement responsibility. [n1] The Agency contends that, because the proposal provides for carrying personally owned weapons onto Fort Jackson and storing such weapons during non-duty time, it deals exclusively with employee activities during non-duty time and does not address any aspect of the employment relationship.

      The Agency also contends that the proposal affects management's right to determine its internal security practices under § 7106(a)(1) of the Statute. The Agency maintains that as part of its internal security procedures, it has implemented a regulation prohibiting employees from storing or wearing personally owned weapons on the installation, except for authorized sporting and hunting activities, and that this proposal conflicts with that policy. [n2] 

      [ v58 p602 ] The Agency further asserts that the proposal is not an appropriate arrangement under § 7106(b)(3) because the Union has not demonstrated how being unarmed while traveling to and from work on Fort Jackson creates an adverse effect for the civilian police officers. In addition, the Agency contends that the Union's arguments that the off-duty police officers, if in uniform and on Fort Jackson, "will be targets of gun toting criminals, mentally deranged persons and terrorists" are purely speculative. Statement of Position at 8. In this regard, the Agency maintains that the Union did not cite any incidents where an off-duty police officer was attacked within the confines of the installation because he or she was wearing a uniform and the Agency is not aware of any such attack ever occurring.

B.     Union

      The Union contends that the proposal involves bargaining unit employees' conditions of employment. In this regard, the Union asserts that by virtue of their oath of office, the employees are police officers 24 hours a day, not just during duty time and are obligated to take police action whenever they witness a crime.

      The Union further contends that the proposal does not affect management's right to determine its internal security practices. In this regard, the Union maintains that the Agency's policy regarding personally owned firearms violates federal law because it is more restrictive than 18 U.S.C. 930, which excludes police officers from fines or imprisonment for possession of firearms. The Union also contends that the proposal is an appropriate arrangement intended to ameliorate an adverse effect resulting from these employees not being able to protect themselves when they are not in duty status. The Union asserts that there have been implied threats made against police officers by "criminal[s]" and "mentally deranged person[s]" and that this proposal would allow these employees to protect themselves, during non-duty hours, from such individuals who, upon seeing them in uniform, would believe they are armed. Petition for Review at 4.

V.     Analysis and Conclusions

      Section 7103(a)(12) of the Statute defines "collective bargaining," in pertinent part, as the parties' mutual obligation to bargain "with respect to . . . conditions of employment . . . ." The term "conditions of employment" is defined in § 7103(a)(14), with exclusions not relevant here, as "personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions[.]" In determining whether a proposal concerns a condition of employment, the Authority applies a two-prong test. In particular, the Authority determines whether: (1) the proposal pertains to bargaining unit employees; and (2) the record establishes that there is a direct connection between the proposal and the work situation or employment relationship of unit employees. See, e.g., Antilles Consolidated Educ. Assoc., 22 FLRA 235, 237 (1986) (Antilles).

      The proposal permits civilian police officers to bring personally owned firearms into and out of the Fort Jackson installation and to store the firearms, while on duty, wherever they believe it is appropriately secure to do so. As to the first prong of the Antilles test, the proposal applies to bargaining unit employees.

      Applying the second prong of the test, the Union has not demonstrated that the ability to bring personally owned weapons onto the installation and store them during duty time would change or affect any aspect of the job functions, job requirements, or any other incidents of employment of the bargaining unit employees. In AFGE, AFL-CIO, Local 1917, 4 FLRA150, 153 (1980), the Authority determined that a proposal requiring the agency to provide secure storage areas for unit employees' private weapons, "which are neither required nor permitted to be used in the performance of such employees' official duties," did not concern employees' conditions of employment. As in AFGE, Local 1917, police officers in the instant case are prohibited, with certain exceptions not relevant here, from carrying or storing personally owned weapons on the installation, and these weapons are not required for the employees to perform their duties.

      The Union contends that the employees are police officers 24 hours a day. However, a memorandum relied on by the Agency demonstrates that these employees have law enforcement responsibilities only while on duty and that they are allowed to use only agency issued weapons while in performance of their duties. Therefore, whether or not the employees may bring personally owned weapons onto the installation and store them during duty time does not have an impact on their job duties.

      This proposal is distinguishable from proposals concerning the storage of personal items found by the Authority to involve employees' conditions of employment. See Fed. Employees Metal Trades Council, 41 FLRA107, 113 (1991); AFGE, AFL-CIO, Local 1770, 17 FLRA752, 756 (1985). In this regard, the proposals in those decisions involved items employees were permitted and expected to bring with them to work, e.g., wallets, purses and lunches, or items that [ v58 p603 ] were required by the agency, e.g., motorcycle safety equipment. Here, employees are not permitted to bring personally owned weapons to work and such weapons are, thus, not ordinary personal items subject to storage during work hours.

      This proposal is also distinguishable from proposals 3 and 4 in AFGE, Nat'l Border Patrol Council and Nat'l Immigration and Naturalization Serv. Council, 40 FLRA521, 537-39 (1991) (AFGE, Border Patrol), rev'd as to other matters, United States DOJ, Immigration and Naturalization Serv. v. FLRA, 975 F.2d 218 (5th Cir. 1992), where the Authority found that the proposals involving the carrying of personally owned firearms off-duty concerned employees' conditions of employment. The agency in AFGE, Border Patrol had established a policy concerning both on and off-duty use of firearms and the union sought to modify this policy. The agency expected its employees to perform law enforcement functions while off-duty and the Authority found that the existing employment relationship was extended beyond duty hours with respect to this issue. See AFGE, Border Patrol, 40 FLRAat 542-43. As there is no existing policy permitting the carrying and storing of personally owned weapons in the instant case, AFGE, Border Patrol is not controlling.

      Based on the foregoing, we conclude that there is no direct connection between carrying and storing personally owned weapons on the installation and the work situation or employment relationship of unit employees and, as such, find that the second prong of the Antilles test has not been met. We note, in this connection, the obvious linkage between carrying weapons and storing them and that there is no argument or basis in the record to distinguish between the aspect of the proposal permitting employees to carry weapons on Fort Jackson and the aspect permitting employees to store the weapons. As such, the proposal is outside the duty to bargain because it does not concern bargaining unit employees' conditions of employment. [n3] 

VI.     Order

      The petition for review is dismissed.



Footnote # 1 for 58 FLRA No. 151 - Authority's Decision

   The memorandum provides, in pertinent part, that civilian police officers "are authorized by the installation commander to carry out law enforcement activities while on duty at Fort Jackson" and "will use only [agency] issued weapons/ammunition [,] . . . not . . . privately owned weapons[,] while in performance of their duties." Statement of Position, Enclosure 1 at 1.


Footnote # 2 for 58 FLRA No. 151 - Authority's Decision

   The Agency cites Age