17:0752(104)NG - AFGE Local l770 and Army, HQ, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC -- 1985 FLRAdec NG
[ v17 p752 ]
17:0752(104)NG
The decision of the Authority follows:
17 FLRA No. 104
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1770
Union
and
DEPARTMENT OF THE ARMY,
HEADQUARTERS, XVIII AIRBORNE
CORPS AND FORT BRAGG,
FORT BRAGG, NORTH CAROLINA
Agency
Case No. O-NG-863
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues
concerning the negotiability of five Union proposals. Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
Union Proposal 1
B. ARTICLE EIGHT, SECTION FIFTEEN
The Employer shall designate trained Federal Women's Program
members who will be available to employees. Federal Women's
Program members will be knowledgeable of the application of EEO
Regulations and other related procedures. Candidates must meet
the criteria established by the Office of the Federal Women's
Program, OPM (Office of Personnel Management). The Union may
nominate individuals to serve as FWP members. The Union shall
have representation and input in the activities of the Federal
Women's Program membership and/or equal representation on
established FWP Committees.
Union Proposal 2
C. ARTICLE EIGHT, SECTION SIXTEEN
The Employer agrees to designate trained coordinators for the
Hispanic program who will develop and provide special outreach for
equal opportunity for Hispanic employees. Hispanic coordinators
will be knowledgeable of the application of EEO Regulations and
other related procedures. Candidates must meet the criteria
established by the Office of the Hispanic Program, EEOC (Equal
Employment Opportunity Commission). The Union may nominate
individuals to serve as Hispanic Program Coordinators. The Union
shall have representation and input in the activities of the
Hispanic program, coordinators and/or equal representation on
established Hispanic Committee(s).
(The underlined portions of these two proposals are in
dispute.)
The Agency contends that the disputed parts of Union Proposals 1 and
2, by prescribing the qualifications criteria for coordinator positions,
fall within the ambit of section 7106(b)(1) of the Statute in that they
affect the types and grades of employees or positions assigned as
program coordinators. The Union asserts that the proposals do not have
the effect suggested by the Agency. That is, the proposals leave
management with "full discretion to determine what a 'trained'
individual means," /1/ and there are no restrictions "which would
operate to include or exclude particular individuals or groups in the
employer's selection" of program coordinators. /2/ Moreover, the Union
states, the proposals would not, contrary to the Agency's
interpretation, prohibit appointment of interns or trainees to the
positions.
The Union's position is unpersuasive in that it is at odds with the
plain language of the proposals. The proposals require the designation
of "trained" coordinators. While the proposals do not stipulate the
specific courses that the coordinators must have completed, it is clear
from the context that the training should have made the appointees
"knowledgeable of the application of EEO Regulations and other related
procedures." Further, the proposals would require that appointees meet
certain specified criteria. In view of the language of the proposals,
the Authority will not base its determination on the Union's explanation
of the proposals. American Federation of Government Employees, AFL-CIO,
Local 2955 and National Guard Bureau, Office of the Adjutant General,
Des Moines, Iowa, 5 FLRA 617 (1981). Consequently, the Authority
concludes that Union Proposals 1 and 2 are to the same effect as the
proposals which were before the Authority in National Federation of
Federal Employees, Local 1332 and U.S. Army Materiel Development and
Readiness Command (DARCOM), 3 FLRA 200 (1980) which sought to prescribe
the training, experience, and qualifications to be possessed by alcohol
and drug abuse counselors. The proposals in that case were found to be
determinative of the "types" of employees who could fill counselor
positions and therefore were held to be negotiable only at management's
election pursuant to section 7106(b)(1) of the Statute. Hence, based on
Army Materiel Development and Readiness Command, and the reasons stated
therein, Union Proposals 1 and 2 are not within the duty to bargain
since the Agency has elected not to bargain over them.
Union Proposal 3
L. ARTICLE TWENTY SEVEN, ACTIONS BASED UPON INSTANCES OF
DISCOURTESY TO THE PUBLIC
The Employer agrees that Unit employees will be protected
against arbitrary and malicious assertions of discourtesy by
members of the public through careful and judicious consideration
of such assertions, to include a thorough investigation of facts
surrounding individual instances prior to taking action to
document the occurrence.
Employees will be entitled to review any written record or
complaint concerning an asserted incident of discourtesy and may
provide a written statement concerning any incident.
In cases where the employee disagrees with an instance of
asserted discourtesy, he may file a grievance to correct the facts
alleged.
The Employer agrees that any assertion(s) of discourtesy not
made with specificity or within 24 hours of any event will not be
a basis for action against an employee.
The Employer recognizes that, on occasion, members of the
public may perceive an employee's legitimate exercise of duty
responsibility as a personal affront.
In cases where the employee shows his actions to be taken under
supervisory direction or based upon operating procedures, no
action will be taken by the Employer. (The underlined portion of
the proposal is in dispute.)
In explaining the intent of Union Proposal 3, the Union states that,
in order to be a basis for disciplinary action against an employee, the
employee must be advised of his or her alleged discourteous conduct
within 24 hours of the time that management becomes aware of the event.
/3/ The Agency asserts that the explanation is not consistent with the
text of the proposal, in that the 24 hour period prescribed by the
proposal commences with occurrence of the event, not from the time the
alleged discourtesy comes to management's attention. However, a choice
between these two interpretations is not necessary in reaching a
negotiability determination.
Under either interpretation, the effect of the disputed part of Union
Proposal 3 is to establish a contractual "statute of limitations,"
which, if exceeded, would preclude the imposition of discipline for
discourtesy. In this respect, the disputed part is to the same effect
as Provision 2 in National Federation of Federal Employees, Local 615
and National Park Service, Sequoia and Kings Canyon National Parks, U.S.
Department of Interior, 17 FLRA No. 45 (1985) which set a 60 day time
limit upon the initiation of investigations of incidents which may lead
to disciplinary actions. The Authority noted that "in many situations
investigations are the essential first step to disciplinary action and
preventing the initiation of investigations, as would Provision 2 upon
expiration of the prescribed period of time, effectively precludes the
imposition of discipline." (Footnote omitted.) Thus, the Authority found
the provision to be inconsistent with management's right to discipline
employees, pursuant to section 7106(a)(2)(A) of the Statute, by, in
certain circumstances, preventing the Agency from acting at all with
respect to that right. In like manner, the disputed part of Union
Proposal 3 would prevent the Agency from imposing discipline for
discourtesy in certain circumstances. /4/ Consequently, based on
National Park Service and the reasons and case cited therein, the
disputed part of Union Proposal 3 is also inconsistent with the
management right to impose discipline and is outside the duty to
bargain.
Union Proposal 4
O. ARTICLE FORTY SIX, SECTION FOUR
The Employer shall make an effort to protect employees against
thefts or (sic) personal property at the work place. This will
include providing lockers or other secure area(s) for employees to
store personal items during working hours.
The Agency asserts that Union Proposal 4 is not materially different
from the proposal which the Authority found to be outside the duty to
bargain in American Federation of Government Employees, AFL-CIO, Local
1917 and U.S. Department of Justice, Immigration and Naturalization
Service, New York City District Office, 4 FLRA 150 (1980). /5/ The
proposal in the cited case would have required management 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." Contrary to the Agency's position, however,
the disputed proposal herein is distinguishable from the one cited by
the Agency. Union Proposal 4 concerns items employees would normally be
expected to bring with them to work, e.g., wallets, purses, and lunches.
Indeed, some of the items may be necessary for the employees to reach
their work locations, in that wallets or purses would contain drivers'
licenses, money for transportation and purchase of food, and
identification credentials. In this respect, Union Proposal 4 is more
closely related to Union Proposal XVI in American Federation of State,
County and Municipal Employees, AFL-CIO, Local 2477, et al., and Library
of Congress, Washington, D.C., 7 FLRA 578 (1982) enforced sub nom.
Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983) which
required management to provide showers and lockers for certain
employees. The Authority determined that the proposal was within the
duty to bargain because it "would be merely incidental to the
performance of the Agency's work and would be principally related to
matters affecting the working conditions of these (employees)." Hence,
based on Library of Congress, and the reasons stated therein, Union
Proposal 4 is within the duty to bargain. /6/
As to the Agency's additional argument that the proposal concerns the
technology of performing work, within the meaning of section 7106(b)(1)
of the Statute, to the extent that it is intended to require provision
of security storage areas for official uniforms, it is noted that the
proposal itself does not address this matter. As the Union points out,
since the proposal only concerns storage facilities for personal items,
"(s)hould official uniforms for the employees constitute the technology
of work and the employer choose to (prescribe) the maintenance of
official uniforms in the lockers or other secure areas, it would be free
to do so under the union's proposal." /7/ The proposal, therefore does
not concern the technology of performing work in the manner suggested by
the Agency.
Union Proposal 5
R. ARTICLE FORTY SIX, SECTION FOURTEEN
Unit employees who are required to spend time traveling shall
be compensated for such travel time as hours of work if:
(a) The employee is required to travel during working hours.
(b) The employee is required to drive a vehicle or perform
other work while traveling.
(c) The employee is required to travel as a passenger on an
one-day assignment away from his official duty station; or
(d) The employee is required to travel as a passenger on an
overnight assignment away from his official duty station during
hours on non-workdays that correspond to the employees' regular
working hours.
Unit employees will only be scheduled for travel during their
regular duty hours and/or duty days. /8/ (The underscored portion
of the proposal remains in dispute. Footnote added.)
In American Federation of Government Employees, AFL-CIO, Local 3424
and Federal Home Loan Bank Board, San Francisco, California, 14 FLRA 79
(1984) the Authority concluded that Union Proposal 1, therein, which
required that the agency grant a maximum amount of duty time for
traveling from an employee's temporary duty location to his or her
residence in certain circumstances, interfered with the management
right, pursuant to section 7106(a)(2)(B) of the Statute, to assign work
by reducing the time frame in which work could be assigned. The
Authority noted in that decision (n.1) that management is required to
exercise its rights under section 7106(a)(2)(B) in a manner consistent
with law. Citing the requirement in 5 U.S.C. 6101(b)(2) that an agency
arrange travel during the scheduled workweek "to the maximum extent
practicable," the Authority determined that the proposal nonetheless
interfered with the right to assign work because it "would require
travel during the scheduled workweek even where not practicable." In
like manner Union Proposal 5, herein, with its flat prohibition of
travel outside regular hours and days of work, interferes with the
Agency's right to assign work and, consequently, is outside the duty to
bargain.
Accordingly pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review as it relates to
Union Proposals 1, 2, 3 and 5 be, and it hereby is, dismissed. IT IS
FURTHER ORDERED that the Agency shall upon request (or as otherwise
agreed to by the parties) bargain concerning Union Proposal 4. Issued,
Washington, D.C., April 24, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Union Reply Brief at 2.
/2/ Id. at 3.
/3/ Petition for Review at 2.
/4/ In this connection, it is noted that 5 U.S.C. 7503(a)
specifically provides that employees may be disciplined for
"discourteous conduct to the public confirmed by an immediate
supervisor's report of four such instances within any one-year period or
any other patterns of discourteous conduct."
/5/ Statement of Position at 6.
/6/ In finding Union Proposal 4 to be within the duty to bargain, the
Authority makes no judgment as to its merits.
/7/ Union Reply Brief at 8.
/8/ Based on an understanding between the parties appearing in the
record, the Agency has withdrawn its objection to the first paragraph of
Union Proposal 5. Accordingly the petition for review as to all but the
underscored portion of the proposal is now moot.