46:0199(18)NG - - AFGE, Local 1867 and Air Force Academy, CO Springs, CO - - 1992 FLRAdec NG - - v46 p199
[ v46 p199 ]
The decision of the Authority follows:
46 FLRA No. 18
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
UNITED STATES AIR FORCE ACADEMY
COLORADO SPRINGS, COLORADO
DECISION AND ORDER ON NEGOTIABILITY ISSUES
October 22, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7106(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of five proposals regarding a proposed change in an Air Force regulation that would prohibit the use of radar detection devices on the Agency's property.
For the reasons that follow, we conclude that only Proposal 1 is properly before us for a determination at this time. Therefore, we will dismiss the petition for review as to the remaining proposals without prejudice to the refiling of an appeal if the conditions governing review are satisfied. We further conclude that Proposal 1 is nonnegotiable because it directly and excessively interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. Accordingly, we will dismiss the petition for review in its entirety.
II. Preliminary Matter
A. Background and Positions of the Parties
The Agency contends that the Union's petition for review should be dismissed because the Union did not properly request, and the Agency did not provide, an allegation of nonnegotiability. The record indicates that in January 1992 the Agency notified the Union of the proposed change in regulation that would prohibit the use of radar detection devices in privately-owned vehicles. The Union requested bargaining and, by letter dated February 10, 1992, submitted five proposals to the Agency for negotiation. At a subsequent bargaining session, held on April 21, 1992, the Agency provided the Union with an internal Agency memorandum dated March 4, 1992, that, according to the Agency, was designed to "facilitate negotiations." Statement of Position at 3. Upon receiving this memorandum, the Union filed the instant petition for review.
The Agency claims the Union's February 10 letter was not a request for an allegation of nonnegotiability because it merely asked that if the Agency were to determine that the first proposal was nonnegotiable, then the Agency should put such determination in writing. The Agency further claims that this request did not refer to the remaining proposals. Accordingly, the Agency argues that it was not obligated to provide a written declaration of nonnegotiability as to any of the proposals and did not make such an allegation, either explicitly or implicitly. In this regard, the Agency claims that the internal memorandum that it provided to the Union did not constitute an allegation of nonnegotiability because the "[A]gency fully intended to continue negotiations." Id. However, the Agency claims that if the Authority finds that the memorandum is an allegation of nonnegotiability, it withdraws its allegation as to Proposals 2-4.(*/) In addition, the Agency also makes arguments as to the merits of Proposals 1 and 5.
The Union contends that the petition for review is properly before the Authority. The Union claims that there is no evidence to support the Agency's contention that the Union's request for an allegation of nonnegotiability applied only to the first proposal. Rather, the Union explains that it addressed Proposal 1 separately from the remaining proposals for the purpose of identifying Proposal 1 as substantive and the remaining proposals as impact and implementation proposals. In addition, the Union claims that the March 4 memorandum provided by the Agency on April 21 constituted an allegation of nonnegotiability as to all the proposals. The Union asserts that because the memorandum stated the Agency's view that "the issue is not negotiable" and was served on the Union's bargaining representative, it was an allegation of nonnegotiability under section 7117 of the Statute. Response at 10, quoting the Agency's memorandum. (Emphasis supplied by Union omitted.) The Union also states that the parties' "normal mode of bargaining include[s] [the] exchange of documents that originated as internal communications." Id. at 11.
Alternatively, the Union maintains that if it is determined that the request for an allegation applies only to Proposal 1, the other proposals are properly before the Authority because the memorandum constituted an unsolicited allegation of nonnegotiability. However, the Union agrees with the Agency that there was no allegation of nonnegotiability as to Proposal 2. Consequently, the Union requests the withdrawal of that proposal in the event the Authority finds that the petition for review is properly before it.
B. Analysis and Conclusions
We conclude that the petition for review is properly before us with regard to Proposal 1. However, the remaining proposals are not appropriately before us for a determination at this time.
The Authority will consider a petition for review of a negotiability issue under 5 U.S.C. § 7117 and section 2424.1 of the Authority's Rules and Regulations only when the parties are in dispute as to whether a proposal is inconsistent with law, rule, or regulation. National Federation of Federal Employees, Local 466 and U.S. Department of Agriculture, Forest Service, Daniel Boone National Forest, Winchester, Kentucky, 45 FLRA 919 (1992) (USDA). In order to establish that such a dispute exists, a union is required to submit with its petition for review a copy of a written allegation by an agency that the matter over which it seeks to negotiate is inconsistent with law, including the Statute, rule, or regulation. 5 C.F.R. § 2424.4(a)(3). Requiring a union to obtain and submit a written allegation by an agency that a matter over which it seeks to negotiate is deemed nonnegotiable "'serves the purpose of avoiding unnecessary litigation in two ways. First, and most obviously, it assures that there actually is a dispute over the negotiability of a proposal. Second, it affords the parties an opportunity to explore alternatives.'" American Federation of Government Employees, Local 3342 and U.S. Department of Health and Human Services, Social Security Administration, New York Region, 36 FLRA 367, 371-72 (1990), quoting American Federation of Government Employees, Local 1513 and U.S. Department of the Navy, Naval Air Station, Whidbey Island, Oak Harbor, Washington, 36 FLRA 82, 83 (1990).
A union may obtain a written allegation of nonnegotiability under section 2424.3 by making a written request for such an allegation from the agency. A union may also file a petition for review from an agency's unsolicited written allegation that a matter over which the union seeks to negotiate is nonnegotiable. See, for example, National Federation of Federal Employees, Local 422 and U.S. Department of the Interior, Bureau of Indian Affairs, Colorado River Agency, 34 FLRA 721, 723-24 (1990). In addition, as provided in 5 C.F.R. § 2424.3, a union may file a petition for review without including a written allegation if the union makes a written request for an allegation that a matter over which it seeks to negotiate is nonnegotiable and the agency fails to respond within 10 days. The Authority has indicated that in such circumstances, it will construe the agency's failure to respond to the request as a constructive declaration of nonnegotiability that gives rise to a right of appeal to the Authority. See American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic-Topographic Center, Washington, D.C., 41 FLRA 265, 269 (1991).
In its February 10 letter, the Union set forth Proposal 1 and requested that if the Agency determined "this issue is not a fully substantiable [sic] issue and is non-negotiable at this level," the Agency should provide that determination to the Union in writing. Petition for Review, Attachment 1 at 1. The Union also stated that if the Agency made a determination of nonnegotiability, it had to give the Union an opportunity to bargain over impact and implementation proposals. The Union then set forth four impact and implementation proposals, which are numbered Proposals 2-5 in its petition for review. Finally, the Union requested that the status quo be maintained until bargaining under the Statute was completed.
We find that the February 10 letter constituted a request for a written allegation of nonnegotiability, but only with regard to Proposal 1. It is clear that the Union set forth the language of Proposal 1 and requested a written allegation as to that proposal. There was no similar request with regard to the four proposals that were labeled impact and implementation proposals. In fact, the Union conditioned further bargaining over those proposals on the Agency's determination that Proposal 1 was nonnegotiable. Under such circumstances, we conclude that the Union did not request an allegation of nonnegotiability from the Agency regarding Proposals 2-5.
We further find that the Agency's March 4, 1992, memorandum, which was given to the Union on April 21, 1992, constituted an allegation of nonnegotiability regarding Proposal 1. Thus, in response to the Union's request for an allegation of nonnegotiability, the Agency provided a memorandum stating that "[t]he prohibition on the 'use' of radar detection devices . . . is not negotiable at this level." Statement of Position, Attachment 2 at 1. The memorandum cited "a Department of Defense initiative" prohibiting the use of radar detectors, and "laws and regulations governing motor-vehicle operations on the installation." Id. Neither the Statute nor the Authority's Rules and Regulations require that an allegation of nonnegotiability be made with any greater specificity than the Agency made here. The only requirement that an agency specifically support its allegation of nonnegotiability applies after the agency has been served with a petition for review and files a statement of position explaining its reasons for declaring the proposal nonnegotiable. See, for example, American Federation of Government Employees, Local 2452 and U.S. Department of Health and Human Services, Social Security Administration, District Office, Huntington Park, California, 45 FLRA 1213, 1214 (1992). Thus, in its allegation, the Agency declared Proposal 1 nonnegotiable on the basis that it was inconsistent with laws and regulations. In addition, in its statement of position, the Agency further argues that Proposal 1 is inconsistent with the exercise of a management right. Based on the foregoing, we conclude that the Agency provided an allegation of nonnegotiability with regard to Proposal 1 and that the Union's petition for review as to that proposal is properly before us.
We also find that the Agency's memorandum does not constitute an unsolicited allegation of nonnegotiability regarding Proposals 2-5. We note, in this regard, that the memorandum does not refer specifically to those proposals.
In addition, as we stated above, the Union conditioned bargaining over Proposals 2-5 on receipt of the Agency's determination that Proposal 1 was nonnegotiable. At the time the Union set forth Proposals 2-5, the Agency had not yet responded to the request with respect to Proposal 1. Thus, it is clear that the Agency did not make an allegation of nonnegotiability concerning Proposals 2-5 in its memorandum. Accordingly, we will dismiss the Union's petition for review with regard to Proposals 2-5 without prejudice to the Union's right to file a negotiability appeal if the conditions governing review of an appeal are met and if the Union chooses to file such an appeal. See USDA, 45 FLRA at 920. In light of this finding, it is unnecessary to pass on the Union's request to withdraw Proposal 2.
III. Proposal 1
It is hereby proposed by the Union to allow bargaining unit employees to have in their possession and to "use" on all roads and highways in the State of Colorado and all that it encompasses, to include the U.S. Air Force Academy's 97 miles of roads, the Electronic Device known as Radar Detection Device. This device is used by bargaining unit employees to assist them in maintaining the proper speed limits required throughout the state and on Academy property.
A. Positions of the Parties
1. The Agency
Initially, the Agency contends that the substance of the proposal is outside its control and that it is not enforceable by the Agency. The Agency asserts that the proposal, as written, would allow bargaining unit members to use radar detectors not only on Agency property, but on "all roads and highways in the State of Colorado . . . ." Statement of Position at 3. The Agency claims that it does not have the authority to allow or disallow the use of radar detectors on state property and that, in any event, its property is not state property. The Agency adds that the fact that Colorado permits the use of radar detectors is irrelevant because the law may change at the state's discretion. The Agency also argues that, although the Union states that the proposal does not charge the Agency with enforcement of the proposal on state roads, this explanation is contrary to the wording of the proposal, which allows employees to use radar detectors on state roads.
The Agency also contends that the proposal directly interferes with the right to determine its internal security practices under section 7106(a)(1) of the Statute. According to the Agency, the prohibition on the use of radar detectors is part of its traffic supervision program, which is intended to protect its personnel and property. The Agency notes that radar detectors are marketed for the express purpose of warning drivers about the use of speed controlling devices by traffic control authorities. Because the proposal would allow the use of radar detectors, and thereby give employees advance notice of the use of speed controlling devices, the Agency argues that the proposal would circumvent the Agency's use of such devices to protect life and property on its premises.
The Agency also claims that the Union has failed to establish that the proposal is intended as an appropriate arrangement under section 7106(b)(3) of the Statute. According to the Agency, the Union has not explained how employees will be adversely affected by the prohibition on the use of radar detectors or how the proposal is designed to mitigate any adverse affects flowing from the change in the regulation. The Agency further claims that the proposal is not an appropriate arrangement because "it negates the exercise of management's right to determine internal security practices . . . [and] would, in effect, prevent management from acting at all in matters concerning the use of radar detectors." Statement of Position at 4. The Agency asserts that the only adverse effect on employees stemming from the prohibition on the use of radar detectors is that they may be subject to discipline for failing to maintain proper speed control. However, the Agency explains that speed limits are posted on its property and that vehicles are equipped with speedometers to maintain the proper speed. Therefore, the Agency claims that maintaining speed control is not dependent on the use of radar detectors. Accordingly, the Agency argues that the proposal is not negotiable as an appropriate arrangement.
2. The Union
The Union states that the term "use" as it appears in the proposal was not intended to charge the Agency with enforcement of the use of radar detectors "except on Academy-controlled property . . . ." Petition for Review at 2. The Union asserts that the proposal "would permit radar detectors to be turned on when an employee [is] driving on the base but would not address use while the employee [is] pulled over by the police." Response at 15 (emphasis in original). In this regard, the Union argues that the proposal would provide the same rights to use radar detectors on Agency property as is currently provided by Colorado state law.
In addition, the Union claims that the proposal refers to the use of radar detectors outside Agency property only for informational purposes and merely to note that the use of radar detectors is legal in the state of Colorado. The Union states that the scope of the proposal does not extend to the use of radar detectors off the Agency's property. The Union requests that the language referring to state roads be severed if the Authority determines that the proposal would have an effect on state property.
The Union contends that the Agency has not established an internal security practice with which the proposal interferes. According to the Union, which cites the Agency's March 4 memorandum, the proposed change in the regulation would permit the use of radar detectors on the Agency's premises until an employee is "pulled over by the base police[,]" at which time the employee would turn off the radar detector. Response at 17. The Union claims that because the proposal does not permit an employee to leave the radar detector turned on while stopped by the base police, there is no conflict between the proposed regulation and the proposal. Consequently, the Union argues that the proposal does not interfere with the Agency's right to determine its internal security practices.
The Union also claims that the Agency has failed to demonstrate that the practice of prohibiting the use of radar detectors involves internal security. The Union contends, for example, that the Agency has not established that employees who use radar detectors drive faster or less safely than others or that, by using a radar detector, an employee is not required to comply with established requirements for operating a vehicle. In fact, the Union asserts that the use of radar detectors promotes safe driving practices by signaling the existence of a police radar unit and reminding the driver to check the vehicle's speed to avoid inadvertently exceeding the speed limit.
If the Authority determines that the proposal directly interferes with a management right, however, the Union contends that the proposal is an appropriate arrangement under section 7106(b)(3) of the Statute. More specifically, the Union claims that the proposal is an arrangement for employees adversely affected by the establishment of speed limits on Agency property "because it provides employees an ability to monitor the speed at which they drive." Id. at 19. The Union further claims that the proposal "does not abrogate the management right to establish such speed limits, or to hold employees accountable for violation of established work rules related to operating vehicles on [Agency] property." Id. The Union maintains that because the proposal would aid employees in complying with speed limits, it would enable them to avoid discipline for failing to comply with such work rules.
The Union also argues that the proposal is an appropriate arrangement because it promotes "administrative consistency on the [b]ase" by requiring the Agency to apply the same radar detector policy to its civilian employees as it applies to other persons. Id. In this regard, the Union contends that the Agency permits cadets and others to drive on the Agency's roads and to use radar detectors except when they are stopped by the police for an unrelated reason. The Union further contends that any interference with a management right is slight. More particularly, the Union claims that if bargaining members are precluded from using radar detectors, there will be a limited impact on overall vehicle traffic because the Agency practice permits cadets and other persons to operate vehicles with radar detectors. In addition, the Union claims that nothing in the proposal prevents the Agency from protecting its property by means other than a prohibition on the use of radar detectors by bargaining unit employees.
Finally, the Union claims that the proposal affords benefits to bargaining unit employees. According to the Union, such benefits include "assisting the employee to comply with speed laws; prevention of discipline for non-compliance with unclear work rules relating to the use of radar detectors . . .; and allowing employees to be consistent in their on-base and off-base practices with respect to radar detectors." Id. at 21.
B. Analysis and Conclusions
Initially, we note that the language of the proposal permits the use of radar detection devices on "all roads and highways in the State of Colorado . . . ." Although the Union claims that the proposal was not designed to extend the use of radar detectors off the Agency's property, it is clear that the language of the proposal provides otherwise. The Union has requested that the Authority sever the language referring to state roads if it finds that portions of the proposal would have an effect on off-base use of radar detectors. We grant the Union's request to sever that language. Thus, for purposes of our decision, the proposal applies only to the use of radar detection devices on the Agency's premises. For the following reasons, we conclude that the proposal is nonnegotiable because it directly and excessively interferes with management's right to determine its internal security practices