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24 FLRA NO. 40

DEFENSE LOGISTICS AGENCY
COUNCIL OF AFGE LOCALS
AFL-CIO

     Union

     and

DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY

     Agency

Case No. 0-NG-838

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute) and presents issues concerning the negotiability of four provisions 1 of a contract which were agreed to locally but disapproved during review of the agreement by the Agency head pursuant to section 7114(c) of the Statute. As set forth below, we find Provisions 1, 3 and 4 nonnegotiable and Provision 2 negotiable.

II. Provision 1

ARTICLE 4 EMPLOYEE RIGHTS AND RESPONSIBILITIES

SECTION 8. The private life of an employee is his/her own affair. [ v24  p 367 ]

A. Positions of the Parties

In its petition the Union states that this, and the other provisions, are very clear and self-explanatory. The Agency argues that this provision conflicts with its right under section 7106(a)(2)(A) to discipline employees for violations of standards of conduct such as nonpayment of debts, which arguably involve their private lives. In response, the Union states that the provision would not prevent the Agency from taking disciplinary action as long as there is a nexus between the off duty conduct for which the employee is being disciplined and the employee's job performance. It argues in this connection that standards of conduct and actions taken under them must not discriminate against employees based on off-duty conduct when there is no relationship to job performance in order to be consistent with 5 USC 2302(b)(10).

B. Analysis and Conclusions

Based on the record in this case we find that this provision is intended to limit the Agency's right to take disciplinary action against bargaining unit employees for off duty conduct to only those circumstances where the Agency can demonstrate that there is a direct relationship between the conduct and the employee's job performance. This limitation is inconsistent with Office of Personnel Management (OPM) regulations and with management's right to discipline.

1. Government-wide Rule or Regulation

Under regulations issued by the OPM, agencies must issue regulations prescribing standards of conduct for their employees. 5 CFR 735.101 (1986). Violations of those agency standards of conduct are subject to remedial action including disciplinary action. 5 CFR 735.107. The OPM regulations establish minimum requirements which agencies must include in their regulations governing conduct of employees. 5 CFR 735.201. Among other things, each agency's regulations must require that (1) employees pay "each just financial obligation in a proper and timely manner" and (2) they "shall not engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, or other conduct prejudicial to the Government." 5 CFR 735.207 and 735.209. In our view, these required standards of conduct apply to the "private life of an employee" which Provision 1 states is the employee's "own affair." Thus, we find Provision 1 and the prescribed [ v24  p368 ] standards are in conflict. This finding is supported by our perception of the intended meaning of the provision, already noted. That is, the provision would limit the Agency's ability to discipline only to where it could demonstrate a direct relationship between conduct and job performance. No such limitation is apparent from the face of the OPM regulation and the Union has not shown that they were meant to be applied in this restricted manner.

We conclude, therefore, that the provision would prohibit the Agency from complying with 5 CFR Part 735 which, as already stated, requires the Agency to prescribe and enforce standards of conduct which apply to an employee's private life. The regulations set forth at 5 CFR Part 735 apply generally to, and are binding on, Federal agencies. 5 CFR 735.101, 735.102 and 735.201. They are Government-wide rules and regulations within the meaning of the Statute. See National Treasury Employees Union Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748, 751-55 (1980). Because Provision 1 is inconsistent with a Government-wide rule or regulation, it is not within the duty to bargain. 2 This case is distinguishable from National Treasury Employees Union and Internal Revenue Service, 6 FLRA 522 (1981) (Proposal VIII) in which the Authority noted that agencies retain some discretion in formulating the specific language of standards of conduct. In finding various rules of conduct to be negotiable in that case the Authority noted that the agency had not established that the proposed language conflicted with law or the various provisions of 5 CFR Part 735 which serve as the basis for the formulation of agency standards.

2. Right to Discipline

The Agency has the right under the Statute to take disciplinary action "in accordance with applicable law." Insofar as the provision seeks to further limit the Agency's ability to institute disciplinary action based on violations [ v24  p369 ] of standards of conduct, it infringes upon the Agency's right under 7106(a)(2)(A) to take disciplinary actions. The record indicates that the Union does not intend the provision simply to require that disciplinary actions relating to off-duty conduct be carried out in accordance with existing law and applicable regulations. Rather, the Union is attempting to establish by contract that a particular relationship between off-duty conduct and the employee's job performance must exist in order to sustain a disciplinary action. 3 If the provision simply required the Agency to adhere to whatever applicable laws and regulations were in existence at the time in taking disciplinary action against employees for off-duty conduct, it would, of course, be negotiable. See for example, American Federation of Government Employees, AFL - CIO, International Council of U.S. Marshals Service Locals and Department of Justice, U.S. Marshals Service, 11 FLRA 672 (1983) (Proposal 4). Based on the record, however, we must conclude that the provision would place substantive limitations on the Agency's reserved discretion to take disciplinary actions based an off-duty conduct, "in accordance with applicable laws."

III. Provision 2

ARTICLE 13 MERIT PROMOTION

Section 2. Policy

E. Higher level duties and responsibilities will not be assigned to employees on a continuing basis when such assignment is not in accordance with the provisions and intent of this Article since such assignments create the impression of favoritism and pre-selection and impair employee confidence in the integrity of the promotion program. [ v24  p370 ]

A. Positions of the Parties

The Agency argues that this provision interferes with its right under section 7106(a)(2)(A) and (B) to assign employees and to assign work. It asserts that both of these rights reserve to the Agency the discretion to determine the qualifications necessary to perform the work involved but that this provision would prevent it from making assignments to employees who are not qualified either under OPM or Agency qualifications standards. The Union argues that this provision would not prevent the Agency from exercising its reserved discretion. Rather, it would establish a procedure to be followed in assigning higher level duties to employees on a continuing basis.

B. Analysis and Conclusions

The provision would effectively require the Agency to use competitive procedures set forth in the Merit Promotion Article of the contract in making assignments of, and to, employees involving higher level duties and responsibilities on a continuous basis.

While, as the Agency points out, its rights under section 7106(a)(2)(A) and (B) to assign employees and to assign work encompass the discretion to establish the qualifications necessary to perform the duties involved, it claims but has not established that the provision would conflict with that discretion. The Authority has consistently found that proposals which establish procedures for selecting employees for assignment from among those judged by management to be qualified constitute negotiable procedures under section 7106(b)(2) and do not interfere with an agency's rights to assign employees and to assign work. See, for example, Laborers International Union of North America, AFL - CIO, Local 1276 and Veterans Administration, National Cemetery Office, San Francisco, California, 9 FLRA 703 (1982).

The Agency asserts that this provision would bind it to observe OPM and agency qualification standards, in derogation of its reserved discretion to determinate the qualifications necessary to perform particular duties. It does not support this assertion by showing how the competitive procedures set forth, or incorporated, in the contract itself would create such a requirement independent [ v24  p371 ] of governing regulations. 4 Such a result is not apparent from a reading of the Merit Promotion Article. As to Agency standards, the competitive procedures specified in the contract include procedures for establishing rating plans which include identification of the knowledge, skills and abilities (KSA's) necessary to successful performance of a particular job. However, these contract procedures do not dictate what the substance of those KSA's will be. Rather, the Agency retains control over the determination of their substance.

Thus, we have no basis in the record for concluding that Provision 2 would infringe on the Agency's discretion to determine the qualifications for positions. Additionally, the record does not establish that, where the Agency determines that qualifications which it had previously established are no longer suitable to a position, it would be prevented by this provision from establishing different ones. Based on the foregoing we conclude that Provision 2 only requires competitive procedures to be used under the specified circumstances in assigning employees to work and positions, and that it does not in any way interfere with management's rights. It is a negotiable procedure under section 7106(b)(2).

IV. Provision 3

ARTICLE 30 REORGANIZATION

SECTION 3. SUCCESSOR POSITIONS

When a position in an organization is abolished as a result of a reorganization and an identical position is to be established at tile same grade within 30 days in a new organization within the PLFA, the incumbent of the old position will be offered the newly established position, unless such offer would be in conflict with the assignment rights of another employee. [ v24  p372 ]

A. Positions of the Parties

The Agency contends that this provision violates the Agency's rights to assign employees and to layoff, retain, remove or reduce in grade or pay under section 7106(a)(2)(A). It also asserts that it interferes with its right under section 7106(a)(2)(C) to select employees and that it violates FPM Chapter 335, Subchapter 1-4, Requirement 4. The Union contends that this provision is an appropriate arrangement within the meaning of section 7106(D)(3).

B. Analysis and Conclusions

This provision, as the Agency asserts and the Union tacitly concedes, would require the Agency to fill certain vacant positions. In American Federation of Government Employees, AFL - CIO, Local 3186 an Department of Health and Human Services, Office of Social Security Field Operations, Philadelphia Region, 23 FLRA No. 30 (1986) (Proposal 2), the Authority found that a proposal which mandated filling vacancies excessively interfered with an agency's rights to hire and assign employees under section 7106(a)(2)(A) and to make selections under section 7106(a)(2)(C) of the Statute. Thus, the Authority concluded the proposal was not an appropriate arrangement within the meaning of section 7106(b)(3). Because this provision, similarly, would abrogate the Agency's discretion to fill or not fill vacant positions, we find that it excessively interferes with the Agency's rights to hire and assign and to make selections in filling positions.

Even assuming that this provision did not constitute an excessive interference with management's rights, it is outside the duty to bargain under section 7117(a)(1) of the Statute because it is inconsistent with a Government-wide regulation, that is, Requirement 4 of Subchapter 1-4, Chapter 335 of the Federal Personnel Manual (FPM), which permits agencies to fill positions by making selections from any appropriate source. By limiting the Agency to the specified sources for filling the position involved, it contravenes that regulation by preventing the Agency from making selections from other appropriate sources, and is outside the duty to bargain. See American Federation of Government Employees, AFL - CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 14 FLRA 801 (1984), aff'd sub nom. American Federation of Government Employees, Local 2782 v. FLRA, No. 85-1562 (D.C. Cir. Oct. 21, 1986). [ v24 p373 ]

Based on these reasons, 5 Provision 3 is not within the duty to bargain.

V. Provision 4

ARTICLE 33 CONTRACTING OUT

SECTION 3. Supervision

Bargaining unit employees will not be required to be supervised by persons who are not officers or employees of the Federal Government.

A. Positions of the Parties

The Agency asserts that this provision would interfere with its rights under section 7106(a)(2)(A) to assign employees and under section 7106(a)(2)(B) to determine the personnel by which agency operations are conducted. The Union's only explanation of the meaning of this provision is that it is clear and self-explanatory. In response to the Agency's arguments the Union contends that a supervisor must be an employee of an agency. In support of this it cites the definition of supervisor in section 7103(a)(10) of the Statute and an opinion regarding contracting for personal services issued by the Civil Service Commission (now OPM) in FPM Letters 300-8 (Dec. 12, 1967) and 300-12 (Aug. 20, 1968). Finally, it contends that this provision does not prevent the Agency from acting at all and is negotiable.

B. Analysis and Conclusions

In American Federation of Government Employees, AFL - CIO, International Council of U.S. Marshals Service Locals and Department of Justice, U. S. Marshals Service, 11 FLRA 672 (1983) the Authority found that a proposal directly interfered with the agency's right to assign work by preventing the agency from requiring unit employees to carry out tasks assigned to them by individuals other than those specified in the proposal. Similarly, this provision would restrict the Agency's ability to require unit employees to carry out tasks assigned by individuals other than those specified in [ v24  p374 ] the provision and, for that reason, conflicts with section 7106(a)(2)(B).

The provision would also directly interfere with the Agency's discretion to determine the personnel who would conduct agency operations under section 7106(a)(2)(B). Under this provision the Agency would be precluded from having contractor and some, if not all, military personnel 6 perform supervisory functions in connection with the bargaining unit. Consequently, it would establish a substantive contractual limitation on the Agency's ability to determine the personnel who would conduct its operations. See National Federation of Federal Employees, Locals 1707, 1737 and 1708 and Headquarters, Louisiana Air and Army National Guard, New Orleans, Louisiana, 9 FLRA 148 (1982).

Consideration of the union's suggestion that this provision merely reflects a limitation set forth in the Statute and the FPM does not lead us to a different result. The union's reliance on the definition of "supervisor" in section 7103(a)(10) is misplaced. That subsection simply enumerates duties and responsibilities which would identify individuals as supervisors for purposes of including or excluding them from bargaining units. 7 it does not substantively limit an agency's discretion to determine which personnel will perform those duties and responsibilities. As to the FPM, assuming without deciding that FPM Letters 300-8 and 300-12 are Government-wide rules or regulations and assuming further that the Union correctly interprets them as effectively prohibiting agencies from allowing contractor personnel to supervise Federal employees, this does not render the provision negotiable. The Authority has found that reiteration in a contract of restrictions on management rights which are found in Government-wide rules and regulations imposes an independent [ v24  p375 ] contractual limitation upon management's discretion with respect to those rights. Incorporation of such limitations in the contract would require management to continue to comply with the restrictions during the term of the agreement regardless of whether the particular restrictions were subsequently removed from the rules or regulations involved. This type of contractual provision, which does not merely recognize an external limitation but imposes a substantive limitation on the exercise of management's rights, is non-negotiable. See, for example, 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 (1984) (Proposal 1), aff'd sub nom. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982). Thus, Provision 4 is nonnegotiable. 8

VI. Order

The Union's petition for review is dismissed insofar as Provisions 1, 3 and 4 are concerned. The Agency must rescind its disapproval of Provision 2.

Issued, Washington, D.C. December 5, 1986.

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY  9 

[ v24  p376 ]

FOOTNOTES

Footnote 1 The Union has withdrawn its petition as to three other provisions. They will not be considered further in this decision.

Footnote 2 In finding that this provision is inconsistent with OPM regulations governing standards of conduct, we express no opinion as to whether portions of these standards may be in conflict with 5 CFR 2302(b)(10) as the Union suggests. The Statute does not authorize us to rule on the legality or validity of OPM regulations. American Federation of Government Employees, AFL-CIO, National Council of Grain Inspection Locals v. Federal Labor Relations Authority, No. 85-4541 (5th Cir. July 21, 1986).

Footnote 3 We note that limiting discipline for off-duty conduct to off-duty conduct which affects job performance arguably is contrary to existing law. See, for example, Allred v. Department of Health and Human Services, 786 F.2d 1128, 1130-32 (Fed. Cir. 1986), in which the Court indicated that a relationship between off-duty conduct and an employee's job may be presumed and may be based on factors other than an employee's job performance.

Footnote 4 We are aware that under FPM Chapter 335, Subchapter 1-4, agencies are required to observe minimum qualification standards prescribed by OPM in effecting certain promotion and placement actions. However, the Agency does not state how, if at all, the contract language involved establishes an independent requirement that these be observed.

Footnote 5 We do not find it necessary to pass upon the Agency's argument that this provision also violates its rights to layoff, retain, remove or reduce in grade or pay.

Footnote 6 Military personnel are neither "officers" nor "employees" within the meaning of Title 5. 5 U.S.C. 2105 and 7103(a)(2). Enlisted military personnel are not "officers" within the meaning of Title 10. 10 U.S.C. 101.

Footnote 7 H.R. REP. No. 95-1403, 95th Cong., 2d sess. 39, 40 (1978), reprinted in Sub-comm. on Postal Personnel and Modernization of the House Comm. on Post Office and Civil Service, 96 Cong. 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, at 685, 686 (Comm. print No. 96-7).

Footnote 8 We do not find it necessary to pass upon the Agency's argument that this provision would also violate the Agency's right under section 7106(a)(2)(A) to assign employees.

Footnote 9 Jerry L. Calhoun did not participate in this case in view of his involvement with the dispute as an official at, the Department of Defense prior to becoming Chairman of the Authority.

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