[ v17 p752 ]
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.