20:0166(19)NG - Defense Logistics Council of AFGE Locals and Defense Logistics Agency -- 1985 FLRAdec NG
[ v20 p166 ]
The decision of the Authority follows:
20 FLRA No. 19 DEFENSE LOGISTICS COUNCIL OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCALS Union and DEFENSE LOGISTICS AGENCY Agency Case No. 0-NG-1063 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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), and presents an issue concerning the negotiability of the following Union proposal: /1/ Section 2 - Employee Rights (a) No action, except for just cause, will be taken against any bargaining employee under this article until there is a conviction by the Court or review procedures under the provisions of Article 36, Grievance Procedures have been exhausted. (b) All actions taken against the employee will be for just cause. (c) No disciplinary action will be taken that is greater than that administered by the courts. (d) The affected employee and/or his/her representative may request that the provisions of Article 39, Stays of Personnel Actions, be invoked. (e) All actions taken by the Employer, under this article are subject to the provisions of Article 36, Grievance Procedures. Section 3 - Exceptions to Suspensions If requested, employees may be granted an exception to the suspension. The following are some, but not necessarily all, of the reasons that an exception may be granted: (a) Physical handicap (b) Personal or family hardship (c) Lack of available transportation (d) Driving is a requirement of the employee's position (e) Employee will consider or is enrolled in an employee assistance program. Section 5 - No Administrative Action for Off Premise Offenses Absent a Nexus The Employer will take no administrative action against any employee for off premise offenses as spelled out in Section 2 above without there being a nexus (link or connection) to job performance. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. In an effort to reduce the number of fatalities and injuries suffered by its employees and the amount of property damage that results from intoxicated driving, the Agency has adopted the practice of expeditiously suspending the driving privileges on its premises of employees and other persons based upon an arrest report or other official documentation of the circumstances of an apprehension for intoxicated driving. In this regard, the Agency has asserted, among other things, that the foregoing practice is an internal security practice; that the proposal conflicts with it; and that the proposal thereby interferes with management's right pursuant to section 7106(a)(1) of the Statute to determine its internal security practices. /2/ An agency's right to determine internal security practices includes the right to determine policies and actions which are part of its plan to secure or safeguard its personnel and physical property. See American Federation of Government Employees, Local 32 and Office of Personnel Management, 16 FLRA No. 10(1984). In agreement with the Agency, the Authority concludes that the proposal at issue in the present case would conflict with a preventive measure taken by the Agency to guard against harm to its property and personnel and, hence, would directly interfere with the Agency's right to determine its internal security practices. Specifically, Section 2 of the proposal establishes various standards which in certain circumstances would prevent the Agency from expeditiously suspending driving privileges pursuant to its practice. Section 3 of the proposal states possible exceptions to suspension of driving privileges on Agency premises. Section 5 requires that no administrative action can be taken against any employee for traffic offenses not occurring on the Agency's premises. Thus, the proposal would, in effect, impose substantive limitations on management's exercise of its right to determine its internal security practices, in particular, the decision as to whether and the circumstances under which the privilege of driving on its premises should be suspended. The Union's argument that the proposal is a negotiable procedure under section 7106(b)(2) of the Statute because it does not prevent the Agency from acting at all with respect to determining its internal security practices is not persuasive. The proposal would limit when the Agency could suspend an employee's driving privileges on its property and thus would have the effect of negating or reversing management's decision itself. Therefore, it does not involve merely a procedure which management will observe in exercising the reserved right in question but constitutes an improper attempt to negotiate with respect to the decision itself. As such, the proposal would impinge upon the Agency's right to make substantive determinations regarding its choice of a particular internal security practice to protect its personnel and property. The proposal would therefore directly interfere with the Agency's right under section 7106(a)(1) of the Statute, and is, thus, outside 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. /3/ Issued, Washington, D.C., September 16, 1985 (s) HENRY B. FRAZIER III Henry B. Frazier III, Acting Chairman (s) WILLIAM J. MCGINNIS JR. William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Union's petition as originally filed contained additional sections to its proposal, i.e., Section 1, Section 2f, Section 4(a) and (b), and Section 6(a) and (b). In its response to the Agency's Statement of Position, the Union withdrew its appeal as to Section 4(a). The Agency in its Statement of Position withdrew its allegation of nonnegotiability as to Sections 1, 2f, 4(b), and 6(a) and (b). Thus, there are no longer any issues before the Authority as to whether those sections of the proposal are within the duty to bargain. /2/ Section 7106(a)(1) provides, in relevant part, as follows: Section 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-- (1) to determine the . . . internal security practices of the agency(.) /3/ In so deciding, the Authority finds it unnecessary to consider the Agency's other contentions concerning the nonnegotiability of the proposal.