National Federation of Federal Employees, Local 75 (Union) and Social Security Administration, Office of Program Operations, Cincinnati, Ohio (Agency)  

 8 FLRA No. 85
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES LOCAL 75
 Union
 
 and
 
 SOCIAL SECURITY ADMINISTRATION,
 OFFICE OF PROGRAM OPERATIONS,
 CINCINNATI, OHIO
 Agency
 
                                            Case No. O-NG-262
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5
 U.S.C. 7101 ET SEQ.) AND RAISES THE QUESTION OF THE NEGOTIABILITY OF TWO
 UNION PROPOSALS.  /1/ UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD,
 INCLUDING THE PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING
 DETERMINATIONS.
 
                             UNION PROPOSAL I
 
    SECTION 4.4.  THE EMPLOYER RECOGNIZES THE RIGHT OF THE UNION TO
 MEMBERSHIP SOLICITATION
    DURING NON-WORK TIME IN NON-WORK AREAS.  THE EMPLOYEES' WORK AREA IS
 CONSIDERED A NON-WORK AREA IF NO EMPLOYEE IS WORKING.
 
 
    IN ALLEGING THAT UNION PROPOSAL I IS NONNEGOTIABLE, THE AGENCY RELIES
 EXCLUSIVELY ON SECTION 7131(B) OF THE STATUTE.  /2/ THE AUTHORITY
 CONCLUDES THAT THE PROPOSAL, ON ITS FACE, IS NOT VIOLATIVE OF THE CITED
 SECTION AND IS THEREFORE NEGOTIABLE.  THE MATTER DISPOSITIVE OF THIS
 CASE IS THE MEANING OF THE TERM "NONDUTY STATUS," AS IT APPEARS IN
 SECTION 7131(B).  IN OKLAHOMA CITY AIR LOGISTICS CENTER (AFLC), TINKER
 AIR FORCE BASE, OKLAHOMA AND AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 916, 6 FLRA NO. 32 (1981), THE AUTHORITY
 STATED AS FOLLOWS:
 
    (W)HERE, AS HERE, IT HAS BEEN DETERMINED THAT EMPLOYEES, AT THE
 DISCRETION OF MANAGEMENT,
 
    HAVE BEEN ASSIGNED PERIODS OF TIME DURING WHICH THE PERFORMANCE OF
 JOB FUNCTIONS IS NOT
 
    REQUIRED (I.E., PAID FREE TIME), THE AUTHORITY FINDS THAT SUCH TIME
 FALLS WITHIN THE MEANING
 
    OF THE TERM "NONDUTY STATUS" AS USED IN SECTION 7131(B).  THUS,
 SOLICITATION OF MEMBERSHIP
 
    DURING SUCH TIME IS PERMISSIBLE.
 
    TO THE EXTENT THE INSTANT PROPOSAL PROVIDES THAT SOLICITATION MAY
 OCCUR DURING PERIODS OF TIME FOR WHICH MANAGEMENT HAS DETERMINED THAT
 PERFORMANCE OF JOB FUNCTIONS IS NOT REQUIRED, IT IS CLEARLY NEGOTIABLE.
 THEREFORE, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE AGENCY SHALL
 UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN
 CONCERNING UNION PROPOSAL I.  /3/
 
                             UNION PROPOSAL II
 
    SECTION 4.6.  PRIOR TO MANAGEMENT INSTITUTING ANY DISCIPLINARY ACTION
 AGAINST A UNION
    REPRESENTATIVE OR OFFICER FOR ENGAGING IN ANY UNION ACTIVITY AND IF
 MANAGEMENT FEELS THAT AN
    EMPLOYEE REPRESENTATIVE IS ENGAGING IN INAPPROPRIATE BEHAVIOR, A
 MANAGEMENT OFFICIAL WILL MEET
    WITH THE REPRESENTATIVE TO DISCUSS THE MATTER.  IF A SATISFACTORY
 RESOLUTION OF THE MATTER IS
    NOT REACHED DURING THIS DISCUSSION, THE AREA DIRECTOR WILL DISCUSS
 THE MATTER WITH THE LOCAL
    PRESIDENT OR METROPOLITAN REPRESENTATIVE.  IF A SATISFACTORY
 RESOLUTION OF THE MATTER IS NOT
    REACHED AT THIS LEVEL, MANAGEMENT'S RECOURSE IS TO OBTAIN A RULING
 FROM THE AUTHORITY PRIOR TO
    TAKING DISCIPLINARY ACTION AGAINST AN OFFICER OR REPRESENTATIVE.
 
 
    THE ISSUE RAISED BY UNION PROPOSAL II IS WHETHER IT IS INCONSISTENT
 WITH THE AGENCY'S AUTHORITY TO DISCIPLINE EMPLOYEES UNDER SECTION
 7106(A)(2)(A) OF THE STATUTE.  /4/ WITH REGARD TO THE FIRST TWO
 SENTENCES OF PROPOSAL II, THE AUTHORITY FINDS THEM NEGOTIABLE UNDER
 SECTION 7106(B)(2) /5/ AS A PROCEDURE WHICH WOULD NOT PREVENT THE AGENCY
 FROM ACTING AT ALL.  SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE
 EXCHANGE, FORT DIX, NEW JERSEY, 2 FLRA 152 (1979), ENFORCED SUB NOM.
 DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, 659 F.2D
 1140 (D.C. CIR. 1981).  THE AUTHORITY, HOWEVER, CONCLUDES THAT THE
 PROPOSAL'S LAST SENTENCE VIOLATES THE AGENCY'S SECTION 7106(A)(2)(A)
 RIGHT TO DISCIPLINE ITS EMPLOYEES.
 
    WITH REGARD TO THE LAST SENTENCE, NEITHER THE STATUTE NOR THE
 AUTHORITY'S RULES AND REGULATIONS EMPOWER THE AUTHORITY TO RULE ON THE
 PROPRIETY OF PROPOSED DISCIPLINARY ACTIONS.  MOREOVER, EVEN ASSUMING,
 ARGUENDO, THAT SOME BASIS FOR AUTHORITY JURISDICTION DID EXIST, THE
 PROPOSAL WOULD THEN VIOLATE SECTION 2429.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS WHICH PROHIBITS THE ISSUANCE OF ADVISORY OPINIONS, /6/ SINCE
 SUCH DECISION, BY THE PROPOSAL'S TERMS, WOULD NOT BIND THE AGENCY.  IN
 LIGHT OF THE FACT THAT THE LAST SENTENCE OF UNION PROPOSAL II IMPOSES
 UPON THE AGENCY'S RIGHT TO DISCIPLINE A CONDITION WHICH THE AGENCY
 CANNOT, UNDER LAW OR REGULATION, MEET, IT EFFECTIVELY PREVENTS THE
 AGENCY FROM ACTING AT ALL WITH RESPECT TO THAT RIGHT.
 
    THEREFORE, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE AGENCY SHALL
 UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN
 CONCERNING THE FIRST TWO SENTENCES OF PROPOSAL II.  /7/ IT IS FURTHER
 ORDERED THAT THE PORTION OF THE UNION'S PETITION FOR REVIEW CONCERNING
 THE LAST SENTENCE OF PROPOSAL II BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., APRIL 30, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE AGENCY CONTENDS THAT THE UNION'S PETITION FOR REVIEW SHOULD
 BE DISMISSED BECAUSE IT DOES NOT MEET THE CONDITIONS FOR REVIEW SET
 FORTH IN SECTION 7117 OF THE STATUTE AND IN THE AUTHORITY'S REGULATION.
 NOTING THAT THERE IS NO DISAGREEMENT AS TO WHICH PROPOSALS ARE IN
 DISPUTE, THE AUTHORITY REJECTS THE AGENCY'S CONTENTION AND FINDS THE
 UNION'S PETITION TO BE PROPERLY BEFORE IT.
 
    /2/ SECTION 7131(B) PROVIDES:
 
    SEC. 7131.  OFFICIAL TIME
 
    (B) ANY ACTIVITIES PERFORMED BY ANY EMPLOYEE RELATING TO THE INTERNAL
 BUSINESS OF A LABOR ORGANIZATION (INCLUDING THE SOLICITATION OF
 MEMBERSHIP, ELECTIONS OF LABOR ORGANIZATION OFFICIALS, AND COLLECTION OF
 DUES) SHALL BE PERFORMED DURING THE TIME THE EMPLOYEE IS IN A NONDUTY
 STATUS.
 
    /3/ IN FINDING UNION PROPOSAL I NEGOTIABLE, THE AUTHORITY MAKES NO
 JUDGMENT AS TO ITS MERITS.
 
    /4/ SECTION 7106(A)(2)(A) PROVIDES, IN RELEVANT PART, AS FOLLOWS:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS CHAPTER
 SHALL AFFECT THE AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
 
   .          .          .          .
 
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
    (A) . . . TO SUSPEND, REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER
 DISCIPLINARY ACTION
 
    AGAINST SUCH EMPLOYEES(.)
 
    /5/ SECTION 7106(B)(2) PROVIDES:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
   .          .          .          .
 
 
    B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM NEGOTIATING--
 
   .          .          .          .
 
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY
 
    AUTHORITY UNDER THIS SECTION(.)
 
    /6/ SECTION 2429.10 OF THE AUTHORITY'S RULES AND REGULATIONS STATES:
 
    SEC. 2429.10 ADVISORY OPINIONS
 
    THE AUTHORITY AND THE GENERAL COUNSEL WILL NOT ISSUE ADVISORY
 OPINIONS.
 
    /7/ IN FINDING A PORTION OF UNION PROPOSAL II NEGOTIABLE, THE
 AUTHORITY MAKES NO JUDGMENT AS TO ITS MERITS.