National Treasury, Employees Union (Union) and United States, Department of the Treasury, United States Customs Service (Agency)

[ v58 p611 ]

58 FLRA No. 155

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

and

UNITED STATES
DEPARTMENT OF THE TREASURY
UNITED STATES CUSTOMS SERVICE [n1] 
(Agency)

0-NG-2652

_____

DECISION AND ORDER
ON A NEGOTIABILITY ISSUE

July 1, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n2] 

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.

      For the reasons which follow, we find that the proposal is outside the duty to bargain.

II.      Background

      The proposal was submitted to the Agency in response to a change in policy which now precludes members of the bargaining unit from using personal firearms while on duty. Under the change in policy, bargaining unit members are now required to use only firearms provided by the Agency while on duty. Under the previous policy, an employee could use a personal firearm provided that the firearm was on the Agency's approved list, but the Agency was not required to pay for the firearm, and the employee agreed to furnish, at his or her expense, the proper holster, ammunition, and permits for the firearm.

III.      Proposal

In the event that employees are no longer permitted to use their Service-authorized personally owned weapon for on-duty use, the Service will reimburse employees for the cost of purchasing the weapon and related costs, e.g., holster, ammunition and necessary permits to carry their personally owned weapon off-duty.

IV.      Meaning of the Proposal

      By its terms, the proposal requires the Agency to reimburse an employee for firearm(s), equipment, and permits that an employee chose to purchase to use while on duty prior to the Agency's change in its policy. The proposal also allows for reimbursement of firearms not purchased, but nonetheless used on the job, such as those inherited or received as a gift. After reimbursement, the employee will continue to possess and own the firearm(s).

V.      Positions of the Parties

A.     Agency

      The Agency argues that the proposal is nonnegotiable for five different reasons.

      First, the Agency argues that the matter pertains to an issue under 5 U.S.C. § 7106(b)(1). It states that the Union acknowledged this when the Union wrote that the Agency "exercised [its] permissive management right to determine the type of firearm to be used by employees while on duty." Agency Reply at 1, Statement of Position (SOP) at 2 (citing AFGE, AFL-CIO International Council of United States Marshals Service Locals, 4 FLRA 384 (1980)). Accordingly, the Agency argues that pursuant to Executive Order 13203, it will no longer be "bound by, or required to bargain over permissive topics of bargaining." SOP at 2.

      Second, the Agency claims that the proposal does not concern a condition of employment. In this respect, the Agency argues that the proposal does not have "a direct effect on working conditions, as required by" Antilles Consolidated Education Association, 22 FLRA 235, 236-37 (1986) (Antilles). SOP at 3, Agency Reply at 3. The Agency argues that it has never required employees to carry personal firearms nor has it previously paid for them. SOP at 4. As such, the Agency maintains that this proposal has no effect on working conditions. Id. [ v58 p612 ]

      Third, the Agency argues that appropriations law precludes the Agency from reimbursing employees for their firearms. The Agency states that "public funds may be spent for such items when it is determined that: (1) the government, rather than the employee, received the primary benefit from the equipment; and (2) the equipment is not a personal item that the employee should furnish." Id. at 4, (citing 63 Comp. Gen. 278 (1984); 61 Comp. Gen. 634 (1982); 56 Comp. Gen. 398 (1977)). It contends that because the employees purchased these firearms at their option for personal reasons, the firearms were a benefit to them not the Agency. SOP at 4, Agency Reply at 3.

      Fourth, the Agency contends that the proposal would interfere with its right to determine internal security practices under 5 U.S.C. § 7106(a)(1). The Agency states that the proposal would allow an employee to "carry personally owned weapons that do not meet the agency's safety concerns, off-duty, in the absence of supervision, at the agency's expense and, as such, it interferes with the agency's ability to determine its internal security practices." SOP at 5.

      Finally, the Agency argues that to the extent the Union argues that the proposal is an appropriate arrangement, it is not. The Agency contends that because employees always volunteered to purchase and use their own firearms rather than Agency issued firearms, and because under the change in policy employees would have access to firearms at no expense supplied exclusively by the Agency, "there can be no demonstration of an adverse effect. . . ." SOP at 3.

B.     Union

      The Union disagrees with the Agency as to its arguments and asserts that the proposal is an appropriate arrangement.

      First, the Union argues that the Agency is wrong in its contention that the proposal "is a permissive subject of bargaining . . . ." Union Response at 1. However, the Union also states, "[o]ver NTEU's objections, Customs exercised their [sic] permissive management right to determine the type of firearm to be used by employees while on duty." Id. at 2.

      Second, the Union maintains that the Agency is incorrect in its assertion that the proposal does not pertain to conditions of employment. The Union states that "whether a change concerns a condition of employment is based on whether the subject matter pertains to conditions of employment and whether there is a direct connection between the subject matter and the work situation or employment relationship of unit employees." Id. at 3-4 (citing Antilles Consolidated Education Association, 46 FLRA 625; United States Dep't of Health and Human Services, SSA, Baltimore, Md., 36 FLRA 655 (1990)). As such, the Union contends that the Agency's new prohibition against employees using personally owned firearms on-duty relates to bargaining unit employees and is directly connected to their work. Union's Response at 4.

      Third, the Union argues that the Agency is not precluded from spending appropriated funds for reimbursement to these employees. In this regard, it argues that because the Agency received the benefit of not having to pay for these personal firearms, and employees were first required to qualify to use these personal firearms while on duty, the Agency can reimburse employees for their firearms under Comptroller General decisions. Id. (citing to NFFE, Local 1827, 26 FLRA 785, 790-92 (1987)).

      Fourth, the Union argues that the proposal does not directly interfere with a management right. Id. at 3. It argues that merely reimbursing employees for these firearms would not interfere with management's right to determine internal security. According to the Union, the Agency would not be liable for acts committed with these firearms after reimbursement as the firearms remain the personal property of the employee. Id. at 2. Moreover, the Union contends that the Agency would not be prevented from requiring employees to carry firearms as a condition of employment or from taking actions or developing policy to secure or safeguard its personnel or physical property. Id. (citing AFGE, Local 987, 37 FLRA 197, 200 (1990)).

      Finally, the Union argues that the proposal is an appropriate arrangement. Union's Response at 2. The Union maintains that the proposal benefits employees as a result of management's decision to eliminate an employee option of carrying his or her own approved firearms on duty. In this respect, the Union notes the impact of the Agency's decision in that employees who carry their own personal firearms while on duty generally feel more comfortable with those firearms as opposed to Agency issued firearms. Id.

VI.     Analysis and Conclusions

      Section 7103(a)(12) of the Statute defines "collective bargaining," as relevant here, as the parties' mutual obligation to bargain "with respect to . . . conditions of employment . . . ." "Conditions of employment" are defined in § 7103(a)(14), with exclusions not relevant here, as "personnel policies, practices, and matters, [ v58 p613 ] whether established by rule, regulation, or otherwise, affecting working conditions[.]"

      In determining whether a proposal concerns a condition of employment, the Authority applies the two-prong test under Antilles. Under this test 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. E.g., Antilles, 22 FLRA at 237.

      The proposal requires the Agency to reimburse bargaining unit employees for the costs associated with personally-owned firearms. These firearms previously were authorized for use while on duty, but pursuant to the Agency's change in policy, are now prohibited from such use.

      Applying 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 reimbursement for personally-owned firearms that will be used exclusively off duty would affect any aspect of the job functions, job requirements, or any other incidents of employment of bargaining unit employees. The Agency's policy precludes unit employees from using personally-owned firearms on duty. That is, personally-owned firearms are neither required nor permitted to be used in the performance of the unit employee's official duties. Thus, these firearms no longer have any connection -- direct or otherwise -- to employees' duties or any other aspect of their employment. As such, reimbursement for the costs of these firearms likewise has no such connection.

      Based on the foregoing, the second prong of the Antilles test has not been met and, as a result, the proposal does not affect a condition of employment. [n3] See Antilles, 22 FLRA at 238 (proposal requiring access to agency's retail, recreational and medical facilities by unit employees did not directly affect the working conditions of unit employees); Maritime/Metal Trades Council, 18 FLRA 326, 330 (1985) (Proposal 3) (proposal intended to provide unit employees with the use of the agency's launch for recreational purposes on weekends did not concern a condition of employment). As such, without addressing the Agency's other arguments, the proposal is outside the duty to bargain.

VII.     Decision

      The petition for review is dismissed.


File 1: Authority's Decision in 58 FLRA No. 155
File 2: Opinion of Chairman Cabaniss


Footnote # 1 for 58 FLRA No. 155 - Authority's Decision

   Pursuant to the Homeland Security Act of 2002 (Pub. L. 107-296; 6 U.S.C. § 101 et. seq.), the United States Department of the Treasury, United States Customs Service, transferred to the United States Department of Homeland Security, Customs and Border Protection. See 6 U.S.C. § 203(a)(1).


Footnote # 2 for 58 FLRA No. 155 - Authority's Decision

   Chairman Cabaniss' concurring opinion is set forth at the end of this decision.


Footnote # 3 for 58 FLRA No. 155 - Authority's Decision

   We note that, in this context, the Antilles test clearly applies to "the subject matter of the proposal." AFGE, Local 1786, 49 FLRA 534, 539 (1994). See also POPA, 53 FLRA 625, 694-95 (1997). There is no question, in this regard, that the Agency's change in policy affected conditions of employment and, thereby, triggered an obligation to bargain over the impact and implementation of