15:0134(25)NG - NFFE Local 1363 and Army Garrison, Yongsan, Korea -- 1984 FLRAdec NG

 15 FLRA No. 25
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES,
 LOCAL 1363
 Union
 
 and
 
 U.S. ARMY GARRISON,
 YONGSAN, KOREA
 Agency
 
                                            Case No. O-NG-651
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    This petition for review comes before the Authority pursuant to
 section 7105(a)(2)(E) of the Federal Service Labor-Management Relations
 Statute (the Statute) and raises questions relating to the negotiability
 of two Union proposals, the texts of which are set forth in the Appendix
 to this Decision.  Upon careful consideration of the entire record,
 including the parties' contentions, the Authority makes the following
 determinations.  /1/
 
    The two Union proposals which are the subject of the instant petition
 are alternative proposals dealing with the establishment and operation
 of a three member board to adjudge allegations of traffic violations
 involving bargaining unit employees.  The only different between the two
 proposals is the composition of the board.  In Union Proposal A the
 board would be composed of two members appointed by the Agency and one
 appointed by the Union.  In Union Proposal B all three would be
 appointed by the Union.  As explained by the Union, the proposals are
 intended to make the Union an effective party to, and participant in,
 judgments rendered on accusations against employees with regard to
 traffic violations whether they occurred on-duty, off-duty, on-post, or
 off-post and whether they involved official or privately-owned vehicles.
 
    The imposition of a penalty by an agency because an employee has
 engaged in a traffic violation under circumstances where there is a
 nexus between the violation and an employee's job, e.g., as in the
 present case where an official vehicle is involved, is a disciplinary
 action within the meaning of section 7106(a)(2) of the Statute and,
 hence, involves the exercise of a management right.  /2/ In National
 Treasury Employees Union and NTEU Chapter 70 and Department of the
 Treasury, Internal Revenue Service, Atlanta Service Center, Georgia, 8
 FLRA 37 (1982) (Union Proposal 5), the Authority held that a proposal
 which would require that penalties relating to suspension of parking
 privileges be discussed with the union prior to their imposition was a
 negotiable procedure under section 7106(b)(2) of the Statute.  /3/ In so
 holding the Authority specifically noted that the proposal did not
 prevent the agency from acting at all with respect to disciplining
 employees and did not limit the penalties which the agency could impose.
  In the present case, however, contrary to the Union's assertion, the
 proposals are not procedural in nature but would impinge upon the
 Agency's right to make substantive determinations pursuant to which the
 decision to take disciplinary action is made.  /4/ In the circumstances
 to which the proposals would apply, a determination of guilt is a
 prerequisite and, thus, integrally related to a decision to take
 disciplinary action.  Inasmuch as the proposals would make the Union a
 participant in judging the guilt of employees accused of traffic
 violations where a nexus exists between an alleged traffic violation and
 the employee's job, they would, necessarily, directly interfere with
 management's substantive determinations to take disciplinary action
 pursuant to its statutory right.  In this regard the proposals are to
 the same effect as the proposal considered by the Authority in National
 Federation of Federal Employees, Local 1431 and Veterans Administration
 Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982).  In that
 case the Authority, relying on reasoning set forth in National
 Federation of Federal Employees, Local 1167 and Department of the Air
 Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air
 Force Base, Florida, 6 FLRA 574 (1981), enforced sub nom. National
 Federation of Federal Employees v. FLRA, 681 F.2d 886 (D.C. Cir. 1982),
 found that inasmuch as a proposal would allow the union to interject
 itself into the decision-making process with respect to various
 management rights, it would directly interfere with those rights.  For
 the reasons expressed in VAMC, East Orange and Homestead Air Force Base,
 the Authority finds that the proposals herein are not within the duty to
 bargain.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review be, and
 it hereby is, dismissed.  /5/
 
    Issued, Washington, D.C., June 26, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                                 APPENDIX
 
                             Union Proposal A
 
    (3) Reports of traffic violations wherein the person accused is an
 employee in a bargaining unit represented by Local 1363, a National
 Federation of Federal Employees, will be considered by a Board of three
 persons.  Two Board members shall be appointed by the agency and one
 shall be a bargaining unit employee appointed by Local 1363.  It is this
 Board who, by majority vote by secret ballot, shall consider and judge
 the guilt or innocence of the accused employee.
 
    (a) The Board shall consider the employee to be innocent until proven
 guilty.  The Board and its members shall have the duty to conduct
 hearings and the authority to administer oaths and to require the
 presence of any person employed by or assigned to the agency whose
 presence is considered by a majority of the Board to be necessary to the
 investigation and consideration of the charge.  The Board's decision
 does not prevent the employee from initiating grievance proceedings over
 that decision.  Board members representing Local 1363 shall be on
 official time while carrying out the duties of the Board and shall be
 entitled to official travel, if required, to carry out those duties.
 
    (b) The employee shall have the right to attend the hearing regarding
 his case and the right to representation by any person of his choosing,
 including representation by Local 1363, if he so requests.  If that
 representative is a member of a bargaining unit represented by Local
 1363, that person shall have the same right to official time and travel
 as the employee defendant.  The employee shall have the right to
 introduce testimony, affidavits, and evidence of any nature which he
 feels is relevant to consideration of his case.  The employee shall have
 the right to confront and examine his accusers and the witnesses against
 him, and the Board shall compel the presence of such persons and place
 them under oath if within the limits of its authority under subparagraph
 (a) above.  Any employee who appears as a defendant at a hearing before
 the Board shall be entitled to the use of official time, to include
 reasonable amounts of official time for the preparation of his defense
 and for travel to and from the hearing, for that purpose;  and shall be
 entitled to official travel, if required, to attend the hearing.
 
                             Union Proposal B
 
    (3) Reports of traffic violations wherein the person accused is an
 employee in a bargaining unit represented by Local 1363, National
 Federation of Federal Employees, will be considered by a Board of three
 bargaining unit employees apponted by Local 1363.  It is this Board who,
 by majority vote by secret ballot, shall consider and judge the guilt or
 innocence of the accused employee.
 
    (a) The Board shall consider the employee to be innocent until proven
 guilty.  The Board and its members shall have the duty to conduct
 hearings and the authority to administer oaths and to require the
 presence of any person employed by or assigned to the agency whose
 presence is considered by a majority of the Board to be necessary to the
 investigation and consideration of the charge.  The Board's decision
 does not prevent the employee from initiating grievance proceedings over
 that decision.  Board members representing Local 1363 shall be on
 official time while carrying out the duties of the Board and shall be
 entitled to official travel, if required, to carry out those duties.
 
    (b) The employee shall have the right to attend the hearing regarding
 his case and the right to representation by any person of his choosing,
 including representation by Local 1363, if he so requests.  If that
 representative is a member of a bargaining unit represented by Local
 1363, that person shall have the same right to official time and travel
 as the employee defendant.  The employee shall have the right to
 introduce testimony, affidavits, and evidence of any nature which he
 feels is relevant to consideration of his case.  The employee shall have
 the right to confront and examine his accusers and the witnesses against
 him, and the Board shall compel the presence of such persons and place
 them under oath if within the limits of its authority under subparagraph
 (a) above.  Any employee who appears as a defendant at a hearing before
 the Board shall be entitled to the use of official time, to include
 reasonable amounts of official time for the preparation of his defense
 and for travel to and from the hearing, for that purpose;  and shall be
 entitled to official travel, if required, to attend the hearing.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Contrary to the Agency's assertion, the Authority finds that the
 Agency, by its failure to respond to the Union's request for an
 allegation, constructively declared the proposals to be nonnegotiable
 thereby giving rise to a right of appeal to the Authority by the Union
 pursuant to section 7117(c) of the Statute and part 2424 of the
 Authority's Rules and Regulations.  See American Federation of
 Government Employees, AFL-CIO, Local 3028 and Department of Health and
 Human Services, Public Health Service, Alaska Area Native Health
 Service, 13 FLRA No. 112 (1984) at page 2.
 
 
    /2/ Section 7106(a)(2) of the Statute provides, in relevant part:
 
          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 . . . take other disciplinary action against such
       employees(.)
 
 
    /3/ Section 7106(b)(2) of the Statute 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(.)
 
 
    /4/ See American Federation of Government Employees, AFL-CIO and Air
 Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA
 603 (1980), enforced sub nom. Department of Defense v. Federal Labor
 Relations Authority, 659 F.2d 1140, 1152 (D.C. Cir. 1981), cert. denied
 sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S.Ct. 1443 (1982).
 
 
    /5/ In view of this decision, it is unnecessary to address the other
 arguments raised by the Agency with respect to the negotiability of the
 proposal.