26:0207(26)NG - Defense Logistics Council of American Federation of Government Employees Locals and Defense Logistics Agency -- 1987 FLRAdec NG

 26 FLRA No. 26
 
 DEFENSE LOGISTICS COUNCIL 
 OF AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES LOCALS
 Union
 
 and
 
 DEFENSE LOGISTICS AGENCY
 Agency
 
                                            Case No. 0-NG-1063 
                                             (20 FLRA No. 19)
 
                       DECISION AND ORDER ON REMAND
 
                         I.  Statement of the Case
 
    This case is before the Authority pursuant to a remand from the
 United States Court of Appeals for the District of Columbia Circuit for
 the entry of an order requiring bargaining on the following two
 subsections of one multi-part proposal:  /1/
 
          (2)(d) The affected employee and/or his/her representative may
       request that the provisions of Article 39, Stays of Personnel
       Actions, be involved.
 
          (2)(e) All actions taken by the Employer, under this article
       are subject to provisions of Article 36, Grievance Procedures.
 
                      II.  Background and Conclusion
 
    In the previous decision in this case, Defense Logistics Council of
 American Federation of Government Employees Locals and Defense Logistics
 Agency, 20 FLRA No. 19 (1985), the Union sought to negotiate one
 multi-part proposal, including the above subsections, concerning
 implementation of a Department of Defense Directive which established
 procedures for expedited suspensions of driving privileges on Agency
 installations on the basis of arrest or apprehension for intoxicated
 driving.  Although the parties provided separate arguments concerning
 individual sections of the proposal the Authority did not sever the
 individual sections of the proposal but rather, found that the proposal
 as a whole directly interfered with the Agency's right under section
 7106(a)(1) of the Statute to determine its internal security practices.
 
    The Union appealed the Authority's decision to the U.S. Court of
 Appeals for the District of Columbia Circuit.  On January 27, 1987, the
 Court affirmed in part and reversed in part the Authority's decision.
 Defense Logistics Council of American Federation of Gov ernment
 Employees Locals v. FLRA, No. 85-1743 (D.C. Cir. Jan. 27, 1987).  The
 Court found that the Authority improperly treated the individual
 sections of the proposal as inseverable.  While the Court affirmed the
 Authority's decision as to the balance of the proposal the Court also
 held the Authority improperly applied the "direct interference" test to
 the above two subsections of the proposal.  As to these two subsections,
 the Court held they are "procedural, rather than substantive, do not
 prevent the Agency from 'acting at all' in suspending driving
 privileges, and are therefore negotiable." Id. slip op. at 14.  Thus,
 the court reversed the Authority's decision as to these two subsections
 of the proposal and remanded them to the Authority for entry of an order
 requiring bargaining.
 
    We accept the Court's opinion as the law of the case.
 
                                III.  Order
 
    The Agency must upon request (or as otherwise agreed to by the
 parties) bargain on subsections (2)(d) and (2)(e) of the Union's
 proposal.  /2/
 
    Issued, Washington, D.C., March 17, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The proposal is set forth in its entirety in an appendix to this
 decision.
 
    (2) In so ordering we make no judgment on the merits of subsections
 (2)(d) and (2)(e) of the proposal.
 
 
                                 APPENDIX
 
    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) Nodisciplinary 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 Procedure.
 
    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.