American Federation of Government Employeees, AFL-CIO, Local 2004 (Union) and New Cumberland Army Depot (Activity) 

 1 FLRA No. 31
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2004
 (Union)
 
 and
 
 NEW CUMBERLAND ARMY DEPOT
 (Activity)
 
                                            FLRC No. 78A-141
 
                    DECISION ON NEGOTIABILITY ISSUE /1/
 
                                 PROVISION
 
    SECTION 3-- THE EMPLOYER AGREES THAT ONLY THOSE TRAFFIC VIOLATIONS
 THAT RESULT IN PROPERTY
 
    DAMAGE, INJURY OR FATALITY WILL BE ENFORCED THROUGH THE MAGISTRATE'S
 COURT.  ALL OTHER
 
    VIOLATIONS WILL BE SUBJECT TO ADMINISTRATIVE ACTION IN ACCORDANCE
 WITH DEPOT REGULATIONS, TO
 
    INCLUDE DISCIPLINARY ACTION WHERE REPETITIVE VIOLATIONS HAVE
 OCCURRED.
 
                           AGENCY DETERMINATION
 
    DURING THE SECTION 15 REVIEW PROCESS UNDER EXECUTIVE ORDER 11491, /2/
 THE AGENCY DETERMINED, INTER ALIA, THAT THE PROVISION CONFLICTS WITH THE
 REQUIREMENTS OF AGENCY REGULATIONS AND, HENCE, IS NONNEGOTIABLE.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE PRINCIPAL QUESTION IS WHETHER THE DISPUTED PROVISION OF A LOCALLY
 NEGOTIATED AGREEMENT WAS PROPERLY DISAPPROVED UNDER SECTION 15 OF THE
 ORDER, AS BEING IN VIOLATION OF PUBLISHED AGENCY REGULATIONS.
 
                                  OPINION
 
    CONCLUSION:  THE SUBJECT PROVISION CONFLICTS WITH AGENCY REGULATIONS,
 AS INTERPRETED BY THE AGENCY, AND IS BARRED FROM NEGOTIATION.  /3/
 ACCORDINGLY, THE AGENCY DETERMINATION THAT THE DISPUTED PROVISION IS
 NONNEGOTIABLE WAS PROPER AND, PURSUANT TO 5 CFR 2411.28(1978), IS
 SUSTAINED.  /4/
 
    REASONS:  THE RECORD BEFORE THE AUTHORITY INDICATES THAT, AT THE
 ACTIVITY, AN INDIVIDUAL CHARGED WITH COMMITTING A TRAFFIC VIOLATION
 RECEIVES EITHER AN "ARMED FORCES TRAFFIC TICKET" (DD FORM 1408) OR A
 "VIOLATION NOTICE" (DD FORM 1805).  IF A TRAFFIC TICKET IS ISSUED, THE
 CHARGE IS PROCESSED UNDER ADMINISTRATIVE PROCEDURES ESTABLISHED BY THE
 LOCAL COMMANDER:  IF A VIOLATION NOTICE IS ISSUED, THE CHARGE IS
 REFERRED TO THE U.S. MAGISTRATE FOR JUDICIAL ACTION.  THE PROVISION AT
 ISSUE ESSENTIALLY PROVIDES THAT LAW ENFORCEMENT PERSONNEL WILL ISSUE
 VIOLATION NOTICES WHICH OPERATE TO REFER SUCH CASES TO THE U.S.
 MAGISTRATE ONLY UPON COMMISSION OF TRAFFIC INFRACTIONS RESULTING IN
 PROPERTY DAMAGE, INJURY OR FATALITY, AND WILL ISSUE TRAFFIC TICKETS IN
 ALL OTHER CIRCUMSTANCES.  THE UNION CLAIMS THAT THE LOCAL COMMANDER HAS
 DISCRETION UNDER AGENCY REGULATIONS (AR 190-5 AND AR 190-29) /5/ AS TO
 WHICH ALLEGED VIOLATIONS SHALL BE SETTLED ADMINISTRATIVELY, I.E., CITED
 BY A TRAFFIC TICKET, AND WHICH SHALL BE REFERRED TO THE U.S. MAGISTRATE
 FOR JUDICIAL DISPOSITION, I.E., CITED BY A VIOLATION NOTICE.  THE
 AGENCY, TO THE CONTRARY, INTERPRETS ITS REGULATIONS AS REQUIRING
 DESIGNATED POLICE PERSONNEL TO ISSUE A VIOLATION NOTICE WITH RESPECT TO,
 AND THUS TO REFER TO A U.W. MAGISTRATE, ALL VIOLATIONS (INCLUDING THOSE
 WHICH INVOLVE NO PROPERTY DAMAGE, INJURY OR FATALITY) WHICH THEY
 CONSIDER TO CONSTITUTE COMMISSION OF "MINOR OFFENSES" WITHIN THE MEANING
 OF 18 U.S.C. 3401.  /6/
 
    IN SUMMARY, THE INSTANT CASE INVOLVES A PROVISION DETERMINED BY THE
 AGENCY TO BE VIOLATIVE OF AGENCY REGULATIONS, AND THE UNION DISAGREES
 WITH THE AGENCY'S INTERPRETATION OF THE SUBJECT REGULATIONS AS
 PRECLUDING NEGOTIATION OF SUCH A PROVISION.  SECTION 15 OF EXECUTIVE
 ORDER 11491, QUOTED ABOVE, IN EFFECT RESERVES AUTHORITY TO AN AGENCY
 HEAD, OR HIS DESIGNEE, TO DISAPPROVE AN AGREEMENT IF IT DOES NOT CONFORM
 TO EXISTING PUBLISHED AGENCY POLICIES AND REGULATIONS, UNLESS THE AGENCY
 HAS GRANTED AN EXCEPTION TO A POLICY OR REGULATION.  /7/ FURTHER, AS TO
 THE UNION'S CONTENTION THAT THE AGENCY HEAD HAS MISINTERPRETED HIS OWN
 REGULATIONS, SECTION 11(C)(3) OF THE ORDER EXPRESSLY PROVIDES THAT "AN
 AGENCY HEAD'S DETERMINATION AS TO THE INTERPRETATION OF THE AGENCY'S
 REGULATIONS WITH RESPECT TO A PROPOSAL IS FINAL . . ." THUS, AS THE
 COUNCIL FREQUENTLY HELD, AN AGENCY'S INTERPRETATION OF ITS OWN
 REGULATIONS WITH RESPECT TO NEGOTIABILITY OF A PROVISION IS BINDING IN A
 NEGOTIABILITY DISPUTE UNDER SECTION 11(C)(3) OF EXECUTIVE ORDER 11491.
 BASED ON THIS SECTION OF THE ORDER, IT IS WELL ESTABLISHED THAT THE
 AUTHORITY MAY NOT SUBSTITUTE ITS INTERPRETATION OF SUCH REGULATIONS FOR
 THAT OF THE AGENCY HEAD.  /8/
 
    ACCORDINGLY, AS THE AGENCY DETERMINED THAT THE DISPUTED PROVISION
 CONLFICTS WITH ITS REGULATIONS AS INTERPRETED BY THE AGENCY AND THE
 UNION MERELY DISAGREES WITH THE AGENCY'S INTERPRETATION OF SUCH
 REGULATIONS, THE AGENCY'S DISAPPROVAL OF THE PROVISION PURSUANT TO
 SECTION 15 OF THE ORDER WAS PROPER.  THUS, THE AGENCY'S DETERMINATION
 THAT THE PROVISION IS NONNEGOTIABLE IS SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., APRIL 27, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ IN ACCORDANCE WITH SECTION 2400.4 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS (44 FED.REG. 5(1979)), WHICH ARE CURRENTLY IN
 EFFECT UNDER SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (92 STAT. 1215), THIS DECISION IS RENDERED UNDER THE
 RULES AND REGULATIONS SET FORTH IN 5 C.F.R. PART 2411, ET SEQ. (1978).
 FURTHER, IN ACCORDANCE WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM
 ACT OF 1978 (92 STAT. 1224), THIS CASE IS DECIDED SOLELY ON THE BASIS OF
 E.O. 11491, AS AMENDED, AND AS IF THE STATUTE "HAD NOT BEEN ENACTED." IN
 THIS REGARD, THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE ORDER.
 
    /2/ SECTION 15 OF THE ORDER PROVIDED:
 
    SEC. 15.  APPROVAL OF AGREEMENTS.  AN AGREEMENT WITH A LABOR
 ORGANIZATION AS THE EXCLUSIVE
 
    REPRESENTATIVE OF EMPLOYEES IN A UNIT IS SUBJECT TO THE APPROVAL OF
 THE HEAD OF THE AGENCY OR
 
    AN OFFICIAL DESIGNATED BY HIM.  AN AGREEMENT SHALL BE APPROVED WITHIN
 FORTY-FIVE DAYS FROM THE
 
    DATE OF ITS EXECUTION IF IT CONFORMS TO APPLICABLE LAWS, THE ORDER,
 EXISTING PUBLISHED AGENCY
 
    POLICIES AND REGULATIONS (UNLESS THE AGENCY HAS GRANTED AN EXCEPTION
 TO A POLICY OR
 
    REGULATION) AND REGULATIONS OF OTHER APPROPRIATE AUTHORITIES.  AN
 AGREEMENT WHICH HAS NOT BEEN
 
    APPROVED OR DISAPPROVED WITHIN FORTY-FIVE DAYS FROM THE DATE OF ITS
 EXECUTION SHALL GO INTO
 
    EFFECT WITHOUT THE REQUIRED APPROVAL OF THE AGENCY HEAD AND SHALL BE
 BINDING ON THE PARTIES
 
    SUBJECT TO THE PROVISIONS OF LAW, THE ORDER AND THE REGULATIONS OF
 APPROPRIATE AUTHORITIES
 
    OUTSIDE THE AGENCY.  A LOCAL AGREEMENT SUBJECT TO A NATIONAL OR OTHER
 CONTROLLING AGREEMENT AT
 
    A HIGHER LEVEL SHALL BE APPROVED UNDER THE PROCEDURES OF THE
 CONTROLLING AGREEMENT, OR, IF
 
    NONE, UNDER AGENCY REGULATIONS.
 
    /3/ THERE IS NO ISSUE BEFORE THE AUTHORITY AS TO EITHER THE
 "COMPELLING NEED" FOR, OR THE VALIDITY OF, THE AGENCY REGULATIONS
 INVOLVED.  THAT IS, THE UNION DOES NOT CLAIM THAT NO COMPELLING NEED
 EXISTS FOR THE REGULATIONS AND DID NOT REQUEST AN EXCEPTION TO THE
 REGULATIONS FROM THE AGENCY;  AND, FURTHER, THE UNION DOES NOT CLAIM
 THAT THE AGENCY REGULATIONS ARE INVALID AS, E.G., VIOLATIVE OF
 APPLICABLE LAW OR THE REGULATION OF APPROPRIATE AUTHORITY OUTSIDE THE
 AGENCY.
 
    /4/ IN VIEW OF OUR DECISION THAT THE PROVISION IS BARRED FROM
 NEGOTIATION BY AGENCY REGULATIONS, IT IS UNNECESSARY TO CONSIDER THE
 REMAINING CONTENTION OF THE AGENCY AS TO THE NEGOTIABILITY OF THE
 PROVISION.
 
    /5/ THE AGENCY REGULATION, AR 190-5, CHAPTER 4, PARA. 4-4, STATES, IN
 PART:
 
    C.  TRAFFIC VIOLATIONS.
 
    (1) INSTALLATION COMMANDERS WILL ESTABLISH ADMINISTRATIVE PROCEDURES
 FOR PROCESSING TRAFFIC
 
    VIOLATIONS.  INDIVIDUALS COMMITTING TRAFFIC VIOLATIONS ON MILITARY
 INSTALLATIONS WILL BE
 
    ISSUED EITHER AN ARMED FORCES TRAFFIC TICKET (DD FORM 1408) OR
 VIOLATION NOTICE (DD FORM 1805)
 
    AS APPROPRIATE.
 
    (A) ONE COPY OF THE TRAFFIC TICKET WILL BE FORWARDED THROUGH COMMAND
 CHANNELS TO THE
 
    VIOLATOR'S COMMANDER, TO THE COMMANDER OF THE DEPENDENT'S SPONSOR, OR
 TO A CIVILIAN SUPERVISOR
 
    OR EMPLOYER . . .
 
   .          .          .          .
 
 
    (2) INSTALLATION COMMANDERS WILL DETERMINE PROCEDURES TO BE USED IN
 THE DISPOSITION OF
 
    CASES INVOLVING TRAFFIC VIOLATIONS THROUGH ADMINISTRATIVE OR JUDICIAL
 ACTION CONSISTENT WITH
 
    THE PROVISIONS OF THE UCMJ AND FEDERAL LAW.  THE DD FORM 1805 WILL BE
 USED TO REFER VIOLATIONS
 
    OF STATE TRAFFIC LAWS MADE APPLICABLE TO THE MILITARY RESERVATION
 (ASSIMILATIVE CRIMES, 18 USC
 
    13) AND OTHER VIOLATIONS OF FEDERAL LAW TO THE US MAGISTRATE IN
 ACCORDANCE WITH SEPARATE
 
    DEPARTMENTAL POLICIES.
 
    THE AGENCY REGULATION, AR 190-29, SECTION III, PARA. 7, STATES, IN
 PART:
 
    7.  ISSUE PROCEDURES FOR VIOLATION NOTICE (DD FORM 1805).
 
   .          .          .          .
 
 
    B.  PREPARATION AND DISPOSITION OF VIOLATION NOTICE, DD FORM 1805.
 
    (1) FOR MINOR OFFENSES WHERE THE MAIL-IN FINE PROCEDURES IS (SIC)
 AUTHORIZED . . .
 
   .          .          .          .
 
 
    (B) DISPOSITION OF VIOLATION NOTICE, DD FORM 1805 WILL BE AS FOLLOWS:
 
   .          .          .          .
 
 
    2.  COPIES ONE (WHITE COPY), TWO (YELLOW COPY), AND THREE (PINK COPY)
 WILL BE RETURNED TO
 
    THE PROVOST MARSHAL'S OFFICE.  THE PROVOST MARSHAL WILL FORWARD
 COPIES 1 AND 2 BY TRANSMITTAL,
 
    TO THE APPROPRIATE US DISTRICT COURT(.)
 
   .          .          .          .
 
 
    (2) FOR MINOR OFFENSES REQUIRING THE MANDATORY APPEARANCE OF
 VIOLATORS BEFORE THE
 
    U.S. MAGISTRATE . . .
 
   .          .          .          .
 
 
    (B) DISPOSITION OF VIOLATION NOTICE, DD FORM 1805 WILL BE AS FOLLOWS:
 
   .          .          .          .
 
 
    2.  COPIES ONE (WHITE COPY), TWO (YELLOW COPY), AND THREE (PINK COPY)
 WILL BE RETURNED TO
 
    THE PROVOST MARSHAL'S OFFICE.  THE PROVOST MARSHAL WILL FORWARD
 COPIES ONE AND TWO, BY
 
    TRANSMITTAL WITHIN 24-HOURS, TO THE MAGISTRATE BEFORE WHOM THE
 VIOLATOR IS SCHEDULED TO
 
    APPEAR.
 
    /6/ THE AGENCY REFERS TO 18 U.S.C. 3401(F)(1976), WHICH STATES, IN
 PART:
 
    AS USED IN THIS SECTION, THE TERM "MINOR OFFENSES" MEANS MISDEMEANORS
 PUNISHABLE UNDER THE
 
    LAWS OF THE UNITED STATES, THE PENALTY FOR WHICH DOES NOT EXCEED
 IMPRISONMENT FOR A PERIOD OF
 
    ONE YEAR, OR A FINE OF NOT MORE THAN $1,000, OR BOTH . . .
 
    /7/ E. G., NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 405 AND
 U.S. ARMY TROOP SUPPORT COMMAND, 3 FLRC 817, 820 (FLRC 75A-111, (DEC.
 22, 1975), REPORT NO.  93).
 
    /8/ E.G., CALIFORNIA NURSES' ASSOCIATION AND VETERANS ADMINISTRATION
 HOSPITAL, LONG BEACH, CALIFORNIA, ET AL., FLRC 77A-89 (JUNE 6, 1978),
 REPORT NO. 151, AT 4 OF COUNCIL DECISION.