09:1004(140)NG - AFGE Local 2272 and Justice, Marshals Service, District of Columbia -- 1982 FLRAdec NG
[ v09 p1004 ]
09:1004(140)NG
The decision of the Authority follows:
9 FLRA No. 140
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2272
Union
and
DEPARTMENT OF JUSTICE,
U.S. MARSHALS SERVICE,
DISTRICT OF COLUMBIA
Agency
Case No. O-NG-63
DECISION AND ORDER ON NEGOTIABILITY ISSUES
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).
OF THE TWENTY-SIX PROPOSALS CONTAINED IN THIS NEGOTIABILITY APPEAL, THE
AGENCY RAISES THE THRESHOLD QUESTION OF WHETHER FIFTEEN OF THE PROPOSALS
ARE PROPERLY THE SUBJECT OF A NEGOTIABILITY APPEAL AT THIS TIME.
THE UNION, HEREIN, IS ONE OF THE LOCAL UNIONS COMPRISING THE
INTERNATIONAL COUNCIL OF UNITED STATES MARSHALS SERVICE LOCALS, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (THE COUNCIL). THE COUNCIL
NEGOTIATED WITH THE U.S. MARSHALS SERVICE A MASTER AGREEMENT COVERING A
UNIT OF ALL ELIGIBLE EMPLOYEES OF THE AGENCY, NATIONWIDE. THE MASTER
AGREEMENT, WHICH THE PARTIES HAVE EXTENDED INDEFINITELY PENDING
RENEGOTIATION, PROVIDES FOR NEGOTIATING LOCAL SUPPLEMENTAL AGREEMENTS
"SUBJECT TO THE PROVISIONS OF (THE) NATIONAL AGREEMENT."
THE UNION INITIATED NEGOTIATIONS ON FORTY PROPOSALS FOR A LOCAL
SUPPLEMENTAL AGREEMENT; ELEVEN WERE DECLARED TO BE NEGOTIABLE BY THE
AGENCY AND THREE WERE WITHDRAWN BY THE UNION. OF THE REMAINING
TWENTY-SIX PROPOSALS, THE AGENCY, IN ITS SUBMISSION TO THE AUTHORITY,
HAS ALLEGED THAT FIFTEEN PROPOSALS CONCERN MATTERS WHICH ARE COVERED BY
THE MASTER AGREEMENT AND ARE CONSEQUENTLY NOT PROPER SUBJECTS FOR
INCLUSION IN A LOCAL SUPPLEMENTAL AGREEMENT. THE REMAINING ELEVEN
PROPOSALS ARE ALLEGED BY THE AGENCY TO BE NONNEGOTIABLE UNDER VARIOUS
PROVISIONS OF THE STATUTE.
AS TO THE FIFTEEN PROPOSALS CONCERNING WHICH THE DISPUTE IS OVER THE
APPLICATION OF THE NATIONWIDE MASTER AGREEMENT, THE AUTHORITY DECIDED IN
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1661 AND
DEPARTMENT OF JUSTICE, BUREAU OF PRISONS, FEDERAL CORRECTIONAL
INSTITUTION, DANBURY, CONNECTICUT, 2 FLRA 411(1980), WITH RESPECT TO A
QUESTION SUBSTANTIALLY IDENTICAL TO THE ONE PRESENTED HERE, THAT THE
PROPER FORUM IN WHICH TO RESOLVE DISPUTES OVER THE MEANING OF PROVISIONS
CONTAINED IN THE MASTER AGREEMENT WOULD BE THAT WHICH THE PARTIES
THEMSELVES HAVE ADOPTED FOR SUCH PURPOSE. FOR THE REASONS FULLY SET
FORTH IN THAT DECISION, THE AUTHORITY FINDS THIS PORTION OF THE INSTANT
PETITION IS NOT APPROPRIATE FOR RESOLUTION UNDER THE PROCEDURES SET
FORTH IN SECTION 7117 OF THE STATUTE AND PART 2424 OF THE AUTHORITY'S
RULES AND REGULATIONS. SEE ALSO AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2272 AND DEPARTMENT OF JUSTICE, U.S. MARSHALS
SERVICE, DISTRICT OF COLUMBIA, 2 FLRA 908(1980).
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS(5 CFR 2424.10(1981)), IT IS ORDERED THAT THE PORTIONS OF THE
UNION'S PETITION FOR REVIEW RELATING TO THOSE FIFTEEN PROPOSALS BE, AND
THEY HEREBY ARE, DISMISSED, WITHOUT PREJUDICE TO THE APPROPRIATE RENEWAL
BY THE UNION OF ITS CONTENTION THAT THE MATTERS IN DISPUTE ARE
NEGOTIABLE UNDER THE STATUTE IN A PETITION DULY FILED WITH THE AUTHORITY
AFTER IT IS RESOLVED, UNDER APPLICABLE PROCEDURES, THAT BARGAINING ON
SUCH MATTERS IS NOT PRECLUDED BY THE CONTROLLING AGREEMENT.
THE REMAINING PROPOSALS IN DISPUTE ARE CONSIDERED BELOW.
UNION PROPOSAL 1
DEPUTIES WHO SERVE PROCESSES AND WORK IN THE SAME SECTION, AND (WHO)
WANT TO WORK AS
PARTNERS SHOULD BE ALLOWED TO DO SO AS LONG AS THEY GET THEIR JOB
DONE SATISFACTORILY TO
MANAGEMENT.
UNION PROPOSAL 2
THERE SHOULD BE AMPLE PERSONNEL WORKING IN THE SUPERIOR COURT AND
U.S. DISTRICT COURT
CELLBLOCKS FOR THE SAFETY OF THE DEPUTIES AS WELL AS OTHERS.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSALS 1 AND 2 ARE INCONSISTENT WITH
THE AGENCY'S RIGHT, UNDER SECTION 7106(B)(1) OF THE STATUTE, /1/ TO
DETERMINE THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES OR POSITIONS
ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT, OR TOUR OF
DUTY.
OPINION
CONCLUSION AND ORDER: UNION PROPOSALS 1 AND 2 ARE INCONSISTENT WITH
THE AGENCY'S RIGHTS UNDER SECTION 7106(B)(1) OF THE STATUTE. THE
MATTERS INVOLVED ARE BARGAINABLE, THEREFORE, ONLY AT THE ELECTION OF THE
AGENCY AND THE AGENCY HAS DECLINED TO BARGAIN ON THEM. ACCORDINGLY,
PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5
CFR 2424.10(1981)), IT IS ORDERED THAT THE PORTIONS OF THE UNION'S
PETITION FOR REVIEW RELATING TO UNION PROPOSALS 1 AND 2 BE, AND THEY
HEREBY ARE, DISMISSED.
REASONS: IN 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 NO.
105(1981)(UNION PROPOSAL 6), AFFIRMED AS TO OTHER MATTERS SUB NOM.
NATIONAL FEDERATION OF FEDERAL EMPLOYEES V. FLRA, F.2D (D.C. CIR. 1982),
THE AUTHORITY HELD THAT A PROPOSAL WHICH WOULD HAVE PREVENTED AN
EMPLOYEE FROM BEING DIRECTED TO WORK ALONE, IN POTENTIALLY HAZARDOUS
AREAS, DIRECTLY INTERFERED WITH THE AGENCY'S RIGHT UNDER SECTION
7106(B)(1) OF THE STATUTE TO DETERMINE THE NUMBERS OF EMPLOYEES ASSIGNED
TO ANY WORK PROJECT OR TOUR OF DUTY. UNION PROPOSAL 1 SIMILARLY WOULD
PREVENT, IN CERTAIN CIRCUMSTANCES, AN EMPLOYEE FROM BEING DIRECTED TO
WORK ALONE AND BEARS NO MATERIAL DIFFERENCE FROM THE PROPOSAL HELD TO BE
OUTSIDE THE DUTY TO BARGAIN IN HOMESTEAD AIR FORCE BASE. FOR THE
REASONS STATED THEREIN, IT ALSO IS OUTSIDE THE DUTY TO BARGAIN.
WITH REGARD TO UNION PROPOSAL 2, IN AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR
FORCE BASE, OHIO, 2 FLRA 603, 620-622(1980), ENFORCED AS TO OTHER
MATTERS SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS
AUTHORITY, 659 F.2D 1140(D.C.CIR. 1981), CERT. DENIED SUB NOM. AFGE V.
FLRA, U.S. , 102 S. CT. 1443(1982), THE AUTHORITY HELD THAT A PROPOSAL,
WHICH WOULD HAVE REQUIRED THE AGENCY, WHERE AUTHORIZED TO DO SO, TO
PROVIDE AN "ADEQUATE NUMBER" OF OVERHIRES, DIRECTLY CONCERNED THE
NUMBERS OF EMPLOYEES ASSIGNED TO ORGANIZATIONAL SUBDIVISIONS OF THE
AGENCY AND CONFLICTED WITH THE AGENCY'S RIGHT TO ELECT NOT TO BARGAIN ON
SUCH MATTERS UNDER SECTION 7106(B)(1) OF THE STATUTE. UNION PROPOSAL 2,
HEREIN, SIMILARLY WOULD REQUIRE THE AGENCY TO MEET AN "AMPLE" STAFFING
LEVEL AND IN THIS REGARD BEARS NO MATERIAL DIFFERENCE FROM THE PROPOSAL
HELD OUTSIDE THE DUTY TO BARGAIN IN THE WRIGHT-PATTERSON DECISION.
HENCE, THIS PROPOSAL, ALSO, INTERFERES WITH THE AGENCY'S RIGHT TO
DETERMINE THE NUMBERS OF EMPLOYEES TO BE ASSIGNED TO ANY ORGANIZATIONAL
SUBDIVISION AND IS BARGAINABLE ONLY AT THE ELECTION OF THE AGENCY UNDER
SECTION 7106(B)(1) OF THE STATUTE.
UNION PROPOSAL 3
THERE SHOULD BE NO TIME LIMITATION PLACED ON THE NUMBER OF PROCESSES
SERVED IN AN HOUR OR
IN A DAY.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL 3 IS INCONSISTENT WITH THE
AGENCY'S RIGHT TO DIRECT EMPLOYEES UNDER SECTION 7106(A)(2)(A) AND TO
ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE STATUTE. /2/
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL 3 IS INCONSISTENT WITH THE
AGENCY'S RIGHT TO DIRECT EMPLOYEES UNDER SECTION 7106(A)(2)(A) AND TO
ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE STATUTE AND THEREFORE THE
DUTY TO BARGAIN DOES NOT EXTEND TO THIS MATTER. ACCORDINGLY, PURSUANT
TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS(5 CFR
2424.10(1981)), IT IS ORDERED THAT THE PORTION OF THE UNION'S PETITION
FOR REVIEW RELATING TO UNION PROPOSAL 3 BE, AND IT HEREBY IS, DISMISSED.
REASONS: THE RIGHT TO DETERMINE THE QUANTITY OF WORK TO BE PERFORMED
BY EMPLOYEES IS ENCOMPASSED WITHIN MANAGEMENT'S STATUTORY RIGHTS TO
DIRECT EMPLOYEES AND ASSIGN WORK. NATIONAL TREASURY EMPLOYEES UNION AND
DEPARTMENT OF THE TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA 768(1980),
APPEAL DOCKETED SUB NOM. NATIONAL TREASURY EMPLOYEES UNION V. FLRA, NO.
80-1895(D.C. CIR. AUG. 4, 1980). IN THAT CASE THE PROPOSAL IN DISPUTE
WOULD HAVE PRESCRIBED THE AMOUNT OF WORK EMPLOYEES MUST PRODUCE TO
RETAIN THEIR JOBS. THE AUTHORITY HELD THAT BY THUS ESTABLISHING THE
MINIMUM OUTPUT WHICH THE AGENCY COULD REQUIRE OF EMPLOYEES, THE PROPOSAL
DIRECTLY INTERFERED WITH THE RIGHTS OF MANAGEMENT TO DIRECT EMPLOYEES
AND ASSIGN WORK UNDER SECTION 7106(A)(2) OF THE STATUTE. THE INSTANT
DISPUTED PROPOSAL, ACCORDING TO THE UNION, WOULD PRECLUDE MANAGEMENT
FROM ESTABLISHING THE MAXIMUM NUMBER OF PROCESSES WHICH COULD BE SERVED
PER HOUR OR DAY. WHILE THIS PROPOSAL CONCERNING A MAXIMUM OBVIOUSLY IS
DIFFERENT FROM THE ONE IN NATIONAL TREASURY EMPLOYEES UNION WHICH
ESTABLISHED A MINIMUM, IN OUT VIEW, THE DISTINCTION IS NOT SIGNIFICANT
FOR PURPOSES OF THIS DECISION. UNDER BOTH PROPOSALS, MANAGEMENT'S RIGHT
TO DETERMINE THE QUANTITY OF PRODUCTION WOULD BE DIRECTLY PRESCRIBED.
UNION PROPOSAL 4
DEPUTIES SHOULD BE REQUESTED TO SUBMIT ONLY ONE MEMORANDUM TO
MANAGEMENT IF HE OR SHE DOES
NOT WANT TO WORK OVERTIME, SPECIAL ASSIGNMENTS, CELLBLOCK OVERTIME,
ETC.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL 4 IS INCONSISTENT WITH THE
AGENCY'S RIGHT TO DIRECT EMPLOYEES UNDER SECTION 7106(A)(2)(A) AND TO
ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE STATUTE, AS ALLEGED BY
THE AGENCY.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL 4 IS NOT INCONSISTENT WITH THE
AGENCY'S RIGHT TO DIRECT EMPLOYEES UNDER SECTION 7106(A)(2)(A) AND TO
ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE STATUTE. INSTEAD, IT IS
A PROCEDURE, UNDER SECTION 7106(B)(2) OF THE STATUTE, /3/ WHICH
MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE IN EXERCISING THEIR
RESERVED RIGHTS. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS(5 CFR 2424.10(1981)), IT IS ORDERED
THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE
PARTIES) BARGAIN CONCERNING UNION PROPOSAL 4. /4/
REASONS: THE PROPOSAL WOULD ESTABLISH A FORMAT WHEREBY EMPLOYEES
COULD INDICATE TO MANAGEMENT THAT THEY ARE NOT INTERESTED IN CERTAIN
OVERTIME ASSIGNMENTS. CONTRARY TO THE AGENCY'S ASSERTION, HOWEVER,
NOTHING ON THE FACE OF THE PROPOSAL WOULD PREVENT THE AGENCY FROM
ACCOMPLISHING OVERTIME WORK BY DIRECTING EMPLOYEES TO PERFORM IT
NOTWITHSTANDING THEIR PREFERENCE AND THE UNION SPECIFICALLY INDICATES
THAT ITS PROPOSAL SHOULD NOT BE CONSTRUED SO AS TO DENY THE AGENCY THIS
ABILITY. ACCORDINGLY, THE PROPOSAL WOULD NOT INTERFERE WITH THE
AGENCY'S RIGHTS IN THIS REGARD. RATHER IT WOULD ESTABLISH A PROCEDURE,
UNDER SECTION 7106(B)(2) OF THE STATUTE, WHICH MANAGEMENT OFFICIALS OF
THE AGENCY WILL OBSERVE IN EXERCISING THEIR RESERVED RIGHTS AND IS
WITHIN THE DUTY TO BARGAIN. /5/
UNION PROPOSAL 5
CITIZENS OR DEPUTIES FILING A COMPLAINT OR BRINGING A SERIOUS CHARGE
AGAINST A DEPUTY
U.S. MARSHAL SHOULD SIGN A PREPARED STATEMENT STATING THE ALLEGED
CHARGE IN THE COMPLAINT ARE
TRUE. IF COMPLAINANT KNOWINGLY FALSIFIES, MISREPRESENT OR LIE
(HE/SHE) SHOULD RECEIVE A HARSH
DISCIPLINE, IF A DEPUTY, AND IF A CITIZEN SHOULD BE PROSECUTED BY THE
U.S. ATTORNEY. ANY
COMPLAINT LEVIED AGAINST A DEPUTY BY ANOTHER DEPUTY OR CITIZEN SHOULD
BE SHOWN TO HIM OR HER
UPON REQUEST.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL 5 IS INCONSISTENT WITH THE
AGENCY'S RIGHT TO DETERMINE ITS INTERNAL SECURITY PRACTICES UNDER
SECTION 7106(A)(1) OF THE STATUTE. /6/
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL 5 IS INCONSISTENT WITH THE
AGENCY'S RIGHT TO DETERMINE ITS INTERNAL SECURITY PRACTICES.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE UNION'S
PETITION FOR REVIEW RELATING TO UNION PROPOSAL 5 BE, AND IT HEREBY IS,
DISMISSED.
REASONS: THE FIRST AND THIRD SENTENCES REQUIRE THAT COMPLAINTS
AGAINST DEPUTIES BE BOTH SWORN TO BY THE COMPLAINANT AND AVAILABLE FOR
INSPECTION BY THE DEPUTY BEING COMPLAINED ABOUT. THE AGENCY STATES THAT
BOTH THESE REQUIREMENTS ARE OBSERVED WHENEVER A COMPLAINT IS USED AS A
BASIS FOR DISCIPLINARY ACTION AGAINST A DEPUTY. HOWEVER, THE AGENCY
ASSERTS THAT BEING OBLIGATED TO MEET THESE REQUIREMENTS "BEFORE
UNDERTAKING AN INVESTIGATION OF A COMPLAINT," AS THE PROPOSAL WOULD
REQUIRE, WOULD INTERFERE WITH ITS DETERMINATIONS REGARDING ITS INTERNAL
SECURITY PRACTICES UNDER SECTION 7106(A)(1) OF THE STATUTE.
IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL
IMMIGRATION AND NATURALIZATION SERVICE COUNCIL AND U.S. DEPARTMENT OF
JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, 8 FLRA NO. 75(1982),
APPEAL DOCKETED SUB NOM. DOJ, INS V. FLRA, NO. 82-1622(D.C. CIR. JUNE
3, 1982), AT 15-16 OF THE DECISION, THE AUTHORITY HELD THAT THE AGENCY'S
DECISION TO REQUIRE SWORN STATEMENTS WHEN CONDUCTING DETERMINATION AS TO
INTERNAL SECURITY PRACTICES WHICH WAS OUTSIDE THE OBLIGATION TO BARGAIN
UNDER SECTION 7106(A)(1). IN THE INSTANT CASE, THE PROPOSAL'S FIRST AND
THIRD SENTENCES SIMILARLY WOULD INFRINGE ON THE AGENCY'S DETERMINATIONS
CONCERNING THE RULES APPLICABLE TO INTERNAL INVESTIGATIONS RELATING TO
THE INTEGRITY OF AGENCY OPERATIONS. ACCORDINGLY, FOR THE REASONS STATED
IN THE CITED DECISION, THE FIRST AND THIRD SENTENCES, HEREIN, ARE
INCONSISTENT WITH THE RIGHT RESERVED TO THE AGENCY UNDER SECTION
7106(A)(1) OF THE STATUTE AND ARE OUTSIDE THE DUTY TO BARGAIN.
ALSO, WITH RESPECT TO THE SECOND SENTENCE OF THE PROPOSAL, INHERENT
IN THE AUTHORITY RESERVED TO THE AGENCY TO DETERMINE ITS INTERNAL
SECURITY PRACTICES IS THE ABILITY OF THE AGENCY TO DECIDE TO PURSUE THE
PROSECUTION OF AN INDIVIDUAL WHO KNOWINGLY FILES A FALSE COMPLAINT OR TO
DECIDE NOT TO PURSUE THE PROSECUTION IN RETURN, FOR EXAMPLE, FOR THE
COMPLAINANT'S COOPERATION ON OTHER INTERNAL SECURITY MATTERS.
ACCORDINGLY, THE SECOND SENTENCE OF THE PROPOSAL, WHICH WOULD REQUIRE
THE AGENCY TO PURSUE THE PROSECUTION OF AN INDIVIDUAL WHO KNOWINGLY
FILES A FALSE COMPLAINT, IS ALSO INCONSISTENT WITH SECTION 7106(A)(1) OF
THE STATUTE. /7/ ACCORDINGLY, THE ENTIRE PROPOSAL IS INCONSISTENT WITH
THE AGENCY'S RIGHT TO DETERMINE ITS INTERNAL SECURITY PRACTICES UNDER
SECTION 7106(A)(1) OF THE STATUTE.
UNION PROPOSAL 6
HAVE THE GUN RANGE OPEN FOR THE DEPUTIES TO PRACTICE IN THE EVENINGS
AND ON SATURDAYS, AND
FOR QUALIFYING.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER, AS ALLEGED BY THE AGENCY, UNION PROPOSAL 6
WOULD REQUIRE THE AGENCY TO NEGOTIATE OVER MATTERS CONCERNING THE
AGENCY'S CHOICE OF THE TECHNOLOGY, METHODS, OR MEANS OF PERFORMING WORK,
WHICH IS NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY UNDER SECTION
7106(B)(1) OF THE STATUTE.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL 6 DOES NOT REQUIRE NEGOTIATIONS
OVER MATTERS BARGAINABLE ONLY AT THE ELECTION OF THE AGENCY UNDER
SECTION 7106(B)(1) OF THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION
2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)),
IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED
TO BY THE PARTIES) BARGAIN CONCERNING UNION PROPOSAL 6. /8/
REASONS: BOTH PARTIES TREAT THE PROPOSAL AS REQUIRING THAT THE GUN
RANGE THAT IS TO BE OPEN IN THE EVENINGS AND ON SATURDAYS BE THE
AGENCY'S OWN GUN RANGE. THE AGENCY INDICATES ITS GUN RANGE WAS CLOSED
FOR SAFETY VIOLATIONS, THAT IT CURRENTLY HAS NO FUNDS FOR ITS RENOVATION
AND THAT, AS A CONSEQUENCE, IT USES GUN RANGES BELONGING TO RENOVATION
AND THAT, AS A CONSEQUENCE, IT USES GUN RANGES BELONGING TO OTHER
AGENCIES. THUS, THE AGENCY CONTENDS, THE PROPOSAL'S IMPLICIT
REQUIREMENT THAT THE AGENCY REPAIR ITS OWN GUN RANGE CONCERNS HOW THE
AGENCY CHOOSES TO USE CERTAIN WORKSPACE, A MATTER INTERFERING WITH THE
AGENCY'S AUTHORITY TO DETERMINE THE TECHNOLOGY OF PERFORMING ITS WORK
UNDER SECTION 7106(B)(1) OF THE STATUTE. THE UNION CLAIMS, IN ESSENCE,
THAT THE PROPOSAL CONCERNS A HEALTH AND SAFETY MATTER, I.E., AN
APPROPRIATE ARRANGEMENT FOR EMPLOYEES ADVERSELY AFFECTED BY
MANAGEMENT'S
EXERCISE OF ITS RIGHT TO REQUIRE THAT EMPLOYEES CARRY FIREARMS AS A
"MEANS" OF PERFORMING THE AGENCY'S WORK. /9/
AS TO THE AGENCY'S ARGUMENT THAT THE PROPOSAL INTERFERES WITH ITS
AUTHORITY TO DETERMINE THE TECHNOLOGY OF PERFORMING ITS WORK, THE AGENCY
HAS MADE NO SHOWING THAT REQUIRING IT TO USE A PORTION OF ITS WORKSPACE
AS A GUN RANGE INTERFERES WITH A TECHNICAL METHOD USED BY THE AGENCY FOR
ACCOMPLISHING OR FURTHERING ITS WORK. /10/ MOREOVER, INSOFAR AS THE
AGENCY'S USE OF GUN RANGES OF OTHER AGENCIES INDICATES THE USE OF A GUN
RANGE, ITSELF, MIGHT REPRESENT THE EXERCISE OF THE AGENCY'S CHOICE OF A
TECHNOLOGY OF PERFORMING WORK, THERE IS A MATERIAL DIFFERENCE BETWEEN
REQUIRING THE AGENCY TO PROVIDE A GUN RANGE FOR THE NON-WORK TIME USE OF
EMPLOYEES AND REQUIRING THE AGENCY TO USE A GUN RANGE AS A PART OF ITS
WORK. THE FORMER, WHICH IS EMBODIED IN THE INSTANT PROPOSAL, WOULD NOT
AFFECT HOW THE AGENCY CHOOSES TO ACCOMPLISH OR FURTHER THE PERFORMANCE
OF ITS WORK. /11/
AS TO THE AGENCY'S ARGUMENT THAT THE PROPOSAL WOULD REQUIRE THE
EXPENDITURE OF FUNDS IT CURRENTLY DOES NOT HAVE, SUCH AN ARGUMENT DOES
NOT RENDER THE PROPOSAL NONNEGOTIABLE. /12/ INSTEAD, THIS FACTOR IS
SOMETHING FOR THE AGENCY TO TAKE INTO ACCOUNT IN DETERMINING ITS
BARGAINING POSITION. /13/
ACCORDINGLY, INSTEAD OF BEING OUTSIDE THE DUTY TO BARGAIN AS THE
AGENCY ALLEGES, THE PROPOSAL REPRESENTS AN APPROPRIATE ARRANGEMENT,
UNDER SECTION 7106(B)(3) OF THE STATUTE, FOR EMPLOYEES ADVERSELY
AFFECTED BY MANAGEMENT'S DETERMINATION THAT, AS A MEANS OF PERFORMING
THE AGENCY'S WORK, EMPLOYEES WILL CARRY FIREARMS. /14/
UNION PROPOSAL 7
THERE SHOULD NOT BE ANY UNION OFFICIAL GOING ON DETAILS, SPECIAL
ASSIGNMENTS, PC (PRISON
CENTRAL) TRIPS, OR ANY OTHER OUT OF THE DISTRICT ACTIVITIES THAT
WOULD TAKE UNION OFFICIALS
OUT OF TOUCH WITH MANAGEMENT. UNION OFFICIALS MUST BE FREE TO
CONTACT MANAGEMENT ANY HOUR OF
THE DAY OR NIGHT. THIS SHOULD REMAIN IN FORCE UNLESS THE UNION
OFFICIALS WANT TO GO ON
DETAILS, SPECIAL ASSIGNMENTS, ETC.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL 7 IS INCONSISTENT WITH THE
AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE
STATUTE.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL 7 IS INCONSISTENT WITH THE
AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE STATUTE
AND THEREFORE THE DUTY TO BARGAIN DOES NOT EXTEND TO THIS MATTER.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS(5 CFR 2424.10(1981)), IT IS ORDERED THAT THE PORTION OF THE
UNION'S PETITION FOR REVIEW RELATING TO UNION PROPOSAL 7 BE, AND IT
HEREBY IS, DISMISSED.
REASONS: THE PLAIN LANGUAGE OF UNION PROPOSAL 7 WOULD DIRECTLY
INTERFERE WITH THE RIGHT OF THE AGENCY TO ASSIGN CERTAIN WORK TO
EMPLOYEES WHO ARE ALSO UNION OFFICIALS, UNLESS THE OFFICIALS CONSENTED.
THIS, IN EFFECT, WOULD CREATE AN EXCEPTION TO THE MANAGEMENT RIGHTS
PROVISION BASED ON THE EMPLOYEES' STATUS AS UNION OFFICIALS. THERE IS
NO BASIS FOR SUCH AN EXCEPTION IN THE STATUTE OR ITS HISTORY. THE
AGENCY HAS THE RIGHT UNDER SECTION 7106(A)(2)(B) TO ASSIGN WORK TO ALL
EMPLOYEES, REGARDLESS OF WHETHER THEY ARE UNION OFFICIALS AND REGARDLESS
OF WHETHER THEY CONSENT. /15/ THEREFORE, UNION PROPOSAL 7 VIOLATES
SECTION 7106(A)(2)(B) OF THE STATUTE. HOWEVER, IT IS CLEAR IN THIS
CONNECTION THAT THE AGENCY MAY NOT ASSIGN WORK BASED ON UNION ANIMUS.
/16/ MOREOVER, ADDITIONAL PROCEDURES AND PRACTICES COULD BE NEGOTIATED
BETWEEN THE PARTIES WHICH WOULD NOT NEGATE THE AGENCY'S RIGHT TO ASSIGN
WORK AND AT THE SAME TIME WOULD ENABLE THE UNION TO IMPLEMENT ITS
STATUTORY RIGHTS AND DUTIES WITH RESPECT TO THE REPRESENTATION OF
EMPLOYEES. /17/
UNION PROPOSAL 8
MANAGEMENT SHOULD KEEP EVERYTHING AS IT IS UNTIL THE COLLECTIVE
BARGAINING AND NEGOTIATIONS
ARE COMPLETED, FINALIZED AND SIGNED, UNLESS THERE IS A DYING
EMERGENCY AND AGREED TO WITH THE
LOCAL AS REQUIRED BY LABOR LAWS.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL 8 VIOLATES THE AGENCY'S RIGHTS
UNDER SECTION 7106(A) OF THE STATUTE.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL 8 IS NOT INCONSISTENT WITH THE
AGENCY'S RIGHTS UNDER SECTION 7106(A) OF THE STATUTE. RATHER, IT WOULD
ESTABLISH A NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) OF THE STATUTE
WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE IN EXERCISING
THEIR MANAGEMENT RIGHTS. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF
THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS
ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY
THE PARTIES) BARGAIN CONCERNING UNION PROPOSAL 8. /18/
REASONS: IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND
AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2
FLRA 603, 623(1980), ENFORCED SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL
LABOR RELATIONS AUTHORITY, 659 F.2D 1140(D.C. CIR. 1981), CERT. DENIED
SUB NOM. AFGE V. FLRA, U.S. , 102 S.CT. 1443(1982), THE AUTHORITY
DETERMINED THAT A UNION PROPOSAL WHICH WOULD REQUIRE THE AGENCY TO HOLD
IN ABEYANCE PROPOSED MID-TERM CHANGES IN CONDITIONS OF EMPLOYMENT
PENDING COMPLETION OF ANY IMPASSES PROCEDURES WHICH MIGHT ARISE, EXCEPT
IN CIRCUMSTANCES INVOLVING AN "OVERRIDING EXIGENCY" OR "UNREASONABLE
DELAY," WAS A NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) OF THE
STATUTE. IN THE INSTANT CASE, THE DISPUTED PROPOSAL SIMILARLY WOULD
REQUIRE THE AGENCY TO HOLD IN ABEYANCE ANY CHANGES IN CONDITIONS OF
EMPLOYMENT UNTIL THE COLLECTIVE BARGAINING PROCESS IS COMPLETED, EXCEPT
IN CIRCUMSTANCES INVOLVING A "DYING EMERGENCY." IN THIS REGARD, THE
PROPOSAL'S USE OF THE LANGUAGE "DYING EMERGENCY," INSTEAD OF "OVERRIDING
EXIGENCY" AS A WRIGHT-PATTERSON, IS NOT A MATERIAL DISTINCTION IN THAT
THE PROPOSAL WOULD NOT PREVENT THE AGENCY FROM ACTING AT ALL. /19/
MOREOVER, THE ADDITIONAL LANGUAGE IN THE PROPOSAL, "AND AGREED TO WITH
THE LOCAL AS REQUIRED BY LABOR LAWS," EXPRESSLY REQUIRES THE AGENCY TO
ADHERE TO ANY APPLICABLE LABOR LAWS. THEREFORE, BASED ON THE REASONS
SET FORTH IN GREATER DETAIL IN WRIGHT-PATTERSON, UNION PROPOSAL 8 MUST
BE HELD TO BE A NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) OF THE
STATUTE WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE IN
EXERCISING THEIR MANAGEMENT RIGHTS.
UNION PROPOSAL 9
THERE SHOULD BE NO LESS THAN 88 HOURS ON ALL SPECIAL DETAILS.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL 9 IS INCONSISTENT WITH THE
GENCY'S RIGHT TO ASSIGN EMPLOYEES AND WORK UNDER SECTION 7106(A)(2)(A)
AND (B) OF THE STATUTE.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL 9 IS NOT INCONSISTENT WITH THE
AGENCY'S RIGHT TO ASSIGN EMPLOYEES AND WORK UNDER SECTION 7106(A)(2)(A)
AND (B) OF THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE
PARTIES) BARGAIN CONCERNING UNION PROPOSAL 9. /20/
REASONS: BASED ON THE RECORD IN THE CASE, IT APPEARS THE AGENCY HAS
ESTABLISHED A ROTATION SYSTEM FOR THE ASSIGNMENT OF EMPLOYEES TO
"SPECIAL DETAILS." UNDER THE SYSTEM, WHEN AN EMPLOYEE REACHES THE TOP OF
THE ROTATION LIST, THEREBY BECOMING THE EMPLOYEE TO BE CHOSEN FOR THE
NEXT SPECIAL DETAIL, THE EMPLOYEE REMAINS AT THE TOP OF THE ROTATION
LIST UNTIL HE OR SHE SPENDS A MINIMUM OF 40 HOURS IN SPECIAL DETAIL
STATUS, I.E., IS ASSIGNED AS MANY SPECIAL DETAILS AS MAY BE NECESSARY TO
GIVE THE EMPLOYEE A MINIMUM OF 40 HOURS IN SPECIAL DETAIL STATUS. AS
EXPLAINED BY THE UNION, UNION PROPOSAL 9 MERELY WOULD EXPAND THIS
MINIMUM TO 88 HOURS. ADOPTING THIS INTERPRETATION FOR PURPOSES OF THIS
DECISION, WHICH IS CONSISTENT WITH THE LANGUAGE OF THE PROPOSAL, THE
AUTHORITY CONCLUDES THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN. IT
WOULD NOT INTERFERE WITH THE AGENCY'S RIGHT TO DETERMINE THE DURATION OF
PARTICULAR ASSIGNMENTS OF EMPLOYEES OR OF WORK UNDER SECTION
7106(A)(2)(A) AND (B) OF THE STATUTE, AS THE AGENCY CLAIMS; /21/
NEITHER WOULD IT BE DETERMINATIVE OF THE NUMBERS, TYPES OR GRADES OF
EMPLOYEES OR POSITIONS ASSIGNED AS FURTHER CLAIMED BY THE AGENCY. /22/
UNION PROPOSAL 10
IF A DEPUTY HAS PERMANENT PERMISSION TO TAKE A GOVERNMENT VEHICLE
BACK AND FORTH TO HIS
HOME, A CAR POOL CAN BE FORMED WITH OTHER DEPUTIES TO GET BACK AND
FORTH TO WORK WHO LIVE IN
THE GENERAL AREAS AND DIRECTIONS.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER, AS ALLEGED BY THE AGENCY, UNION PROPOSAL 10
IS INCONSISTENT WITH 31 U.S.C. SEC. 638A(C)(2) /23/ SO AS TO BE
NONNEGOTIABLE UNDER SECTION 7117(A)(1) OF THE STATUTE, /24/ OR IS
INCONSISTENT WITH SECTION 7106(B)(1) OF THE STATUTE.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL 10 IS NOT INCONSISTENT WITH 31
U.S.C. 638A(C)(2) OR SECTION 7106(B)(1). ACCORDINGLY, PURSUANT TO
SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
2424.10(1981)), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS
OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING UNION PROPOSAL
10. /25/
REASONS: THE AGENCY ARGUES THE PROPOSAL IS INCONSISTENT WITH ITS
RIGHT TO DETERMINE THE TECHNOLOGY OF PERFORMING WORK, UNDER SECTION
7106(B)(1) OF THE STATUTE, BY SUBJECTING TO THE DUTY TO BARGAIN THE
DECISION AS TO WHETHER PARTICULAR EMPLOYEES WILL OR WILL NOT BE EQUIPPED
WITH VEHICLES TO CARRY OUT PARTICULAR PORTIONS OF THEIR DUTIES.
ADDITIONALLY, THE AGENCY CLAIMS THE PROPOSAL IS INCONSISTENT WITH
SECTION 638A(C)(2) BECAUSE, EVEN IF A VEHICLE WERE PROPERLY AUTHORIZED
TO BE TAKEN HOME BY ONE EMPLOYEE BECAUSE HE IS ENGAGED IN "FIELD WORK"
WITHIN THE MEANING OF THE STATUTE, THE USE OF THE VEHICLE TO TRANSPORT
OTHER EMPLOYEES WHO ARE NOT ENGAGED IN SUCH FIELD WORK WOULD PREVENT
THE
VEHICLE FROM BEING USED "EXCLUSIVELY FOR OFFICIAL PURPOSES" AS REQUIRED
BY THE STATUTE.
AS TO THE AGENCY'S ARGUMENT THAT THE PROPOSAL REQUIRES THE AGENCY TO
BARGAIN OVER THE DECISION AS TO WHETHER PARTICULAR EMPLOYEES WILL OR
WILL NOT BE EQUIPPED WITH VEHICLES, IT IS BASED UPON A MISUNDERSTANDING
OF THE PROPOSAL. THE PROPOSAL ONLY WOULD APPLY WITH REGARD TO A DEPUTY
WHO HAD BEEN GRANTED "PERMANENT PERMISSION" TO TAKE A VEHICLE HOME:
WHETHER, IF EVER, TO GRANT SUCH "PERMANENT PERMISSION" OR TO GRANT
PERMISSION ONLY ON A CASE-BY-CASE BASIS WOULD BE WITHIN THE CONTROL OF
THE AGENCY.
AS TO THE AGENCY'S CLAIM THAT THE PROPOSAL IS INCONSISTENT WITH
SECTION 638A(C)(2) BECAUSE IT WOULD PREVENT THE VEHICLE FROM BEING USED
"EXCLUSIVELY FOR OFFICIAL PURPOSES," THE CLAIM IS BASED UPON AN
INTERPRETATION OF SECTION 638A(C)(2) THAT IS MORE RESTRICTIVE THAN
REQUIRED. THE PRIMARY PURPOSE OF SECTION 638A(C)(2), AS APPLIED BY THE
COMPTROLLER GENERAL, IS TO PREVENT THE USE OF GOVERNMENT VEHICLES FOR
THE PERSONAL CONVENIENCE OF EMPLOYEES. THUS, IF A VEHICLE IS USED ONLY
FOR OFFICIAL PURPOSES AS DETERMINED BY THE AGENCY, TRANSPORTATION OF ANY
OTHER EMPLOYEES WHICH WAS ONLY INCIDENT TO SUCH USE WOULD NOT BE
INCONSISTENT WITH SECTION 638A(C)(2). /26/ THAT IS, SECTION 638A(C)(2)
WOULD NOT BE VIOLATED WHERE TRANSPORTATION OF EMPLOYEES IN A GOVERNMENT
VEHICLE BETWEEN THEIR HOMES AND PLACE OF EMPLOYMENT IS SUCH THAT THEY
MERELY ACCOMPANY ANOTHER EMPLOYEE ON AN OTHERWISE ALREADY AUTHORIZED
TRIP FOR THE TRANSACTION OF OFFICIAL BUSINESS, AND THE AGENCY DETERMINES
THAT THE TRIP IS IN THE GOVERNMENT'S INTEREST.
UNION PROPOSAL 11
WHEN DEPUTIES GO ON SPECIAL DETAILS, PC (PRISON CENTRAL) TRIPS, ETC.,
A 48 HOUR NOTICE, AT
LEAST, SHOULD BE GIVEN.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL 11 IS INCONSISTENT WITH THE
AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE
STATUTE.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL 11 IS NOT INCONSISTENT WITH THE
AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) BUT, INSTEAD,
ESTABLISHES A NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) OF THE
STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE
AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES)
BARGAIN CONCERNING UNION PROPOSAL 11. /27/
REASONS: UNION PROPOSAL 11 WOULD NOT PREVENT THE AGENCY FROM
ASSIGNING EMPLOYEES TO ANY SPECIAL DETAIL; IT WOULD MERELY REQUIRE THAT
THE AGENCY GIVE 48 HOUR NOTICE OF SUCH AN ASSIGNMENT. THE AGENCY HAS
MADE NO CLAIM THAT IT WOULD HAVE INSUFFICIENT ADVANCE KNOWLEDGE OF
SPECIAL DETAILS SO THAT MEETING THE PROPOSAL'S 48 HOUR NOTICE
REQUIREMENT WOULD IN ANY WAY PREVENT IT FROM REQUIRING THAT THESE
DETAILS BE ACCOMPLISHED. IN AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE SERVICE,
DIX-MCGUIRE EXCHANGE, FORT DIX, NEW JERSEY, 2 FLRA 152, 155(1979),
ENFORCED SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS
AUTHORITY, 659 F.2D 1140(D.C. CIR. 1981), CERT. DENIED SUB NOM. AFGE V.
FLRA, U.S. , 102 S.CT. 1443(1982), THE AUTHORITY STATED THAT SECTION
7106(B)(2) OF THE STATUTE "IS INTENDED TO AUTHORIZE AN EXCLUSIVE
REPRESENTATIVE TO NEGOTIATE FULLY ON PROCEDURES, EXCEPT TO THE EXTENT
THAT SUCH NEGOTIATIONS WOULD PREVENT AGENCY MANAGEMENT FROM ACTING AT
ALL." SINCE IT HAS NOT BEEN SHOWN THAT UNION PROPOSAL 11 WOULD PREVENT
THE AGENCY FROM ACTING AT ALL WITH RESPECT TO ASSIGNING WORK TO
EMPLOYEES, IT IS A PROCEDURE NEGOTIABLE UNDER SECTION 7106(B)(2) OF THE
STATUTE. /28/
ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ SECTION 7106(B)(1) OF THE STATUTE PROVIDES:
SEC. 7106. MANAGEMENT RIGHTS
* * * *
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM NEGOTIATING --
(1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
OF EMPLOYEES OR
POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
OR TOUR OF DUTY, OR ON THE
TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK(.)
/2/ SECTION 7106 OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
FOLLOWS:
SEC. 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 --
* * * *
(2) IN ACCORDANCE WITH APPLICABLE LAWS --
(A) TO . . . DIRECT . . . EMPLOYEES IN THE AGENCY . . . ;
(B) TO ASSIGN WORK(.)
/3/ SECTION 7106(B)(2) PROVIDES:
SEC. 7106. MANAGEMENT RIGHTS
* * * *
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM NEGOTIATING --
* * * *
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION (.)
/4/ IN DECIDING THAT UNION PROPOSAL 4 IS WITHIN THE DUTY TO BARGAIN,
THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
/5/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, ALF-CIO,
INTERNATIONAL COUNCIL OF U.S. MARSHALS SERVICE LOCALS AND DEPARTMENT OF
JUSTICE, U.S. MARSHALS SERVICE, 4 FLRA NO. 52 (1980); NATIONAL LABOR
RELATIONS BOARD UNION AND NATIONAL LABOR RELATIONS BOARD, WASHINGTON,
D.C., 3 FLRA 507(1980).
/6/ SECTION 7106(A)(1) OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
FOLLOWS:
SEC. 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(.)
/7/ OF COURSE, INSOFAR AS THE PROPOSAL CONCERNS THE PROSECUTION OF A
"CITIZEN" WHO IS NOT A MEMBER OF THE BARGAINING UNIT, IT DOES NOT
CONCERN THE CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES. HENCE, IN ANY
EVENT, THE PROPOSAL WOULD BE OUTSIDE THE DUTY TO BARGAIN TO THIS EXTENT.
/8/ IN DECIDING THAT UNION PROPOSAL 6 IS WITHIN THE DUTY TO BARGAIN,
THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
/9/ IN THIS REGARD, SECTION 7106(B)(3) OF THE STATUTE PROVIDES:
SEC. 7106. MANAGEMENT RIGHTS
* * * *
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM NEGOTIATING --
* * * *
(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY
AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
/10/ SEE AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL
EMPLOYEES, AFL-CIO, LOCAL 2477 AND LIBRARY OF CONGRESS, WASHINGTON, D.C.
(AND OTHER CASE CONSOLIDATED THEREWITH), 7 FLRA NO. 89(1982).
/11/ ID. (UNION PROPOSAL XVI).
/12/ SEE AMERICAN FEDERATION OF GOVER4MENT EMPLOYEES, AFL-CIO, LOCAL
32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 6 FLRA NO.
76(1981).
/13/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
2875 AND DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, NATIONAL MARINE FISHERIES SERVICE, SOUTHEAST FISHERIES
CENTER, MIAMI LABORATORY, FLORIDA, 5 FLRA NO. 55(1981)(UNION PROPOSAL
4).
/14/ CF. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
INTERNATIONAL COUNCIL OF U.S. MARSHALS SERVICE LOCALS AND DEPARTMENT OF
JUSTICE, U.S. MARSHALS SERVICE, 4 FLRA NO. 52(1980)(UNION PROPOSAL
I)(WHEREIN THE AUTHORITY FOUND THAT THE AGENCY HAD EXERCISED ITS RIGHT
UNDER SECTION 7106(B)(1) TO DETERMINE ONE OF ITS "MEANS OF PERFORMING
WORK" WHEN IT REQUIRED EMPLOYEES TO CARRY FIREARMS).
/15/ ASSOCIATION OF CIVILIAN TECHNICIANS AND STATE OF GEORGIA
NATIONAL GUARD, 2 FLRA 580(1980).
/16/ SEE 5 U.S.C. SEC. 7116(A)(1).
/17/ SEE NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL REVENUE
SERVICE, 7 FLRA NO. 42(1981)(UNION PROPOSAL 1).
/18/ IN DECIDING THAT UNION PROPOSAL 8 IS WITHIN THE DUTY TO BARGAIN,
THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
/19/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
1999 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT
DIX, NEW JERSEY, 2 FLRA 152(1979), ENFORCED SUB NOM. DEPARTMENT OF
DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, 659 F.2D 1140(D.C. CIR.
1981), CERT. DENIED SUB NOM. AFGE V. FLRA, U.S. , 102 S. CT.
1443(1982).
/20/ IN DECIDING THAT UNION PROPOSAL 9 IS WITHIN THE DUTY TO BARGAIN,
THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
/21/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR
FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 5 FLRA
NO. 15(1981).
/22/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
2875 AND DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, NATIONAL MARINE FISHERIES SERVICE SOUTHEAST FISHERIES
CENTER, MIAMI LABORATORY, FLORIDA, 5 FLRA NO. 55(1981), AT 4-5 OF THE
DECISION; BUT SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
3669, AFL-CIO AND VETERANS ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS,
MINNESOTA, 2 FLRA 640(1980)(WHEREIN A PROPOSAL ALLOWING NURSES EVERY
OTHER WEEKEND OFF WAS FOUND VIOLATIVE OF SECTION 7106(B)(1) BECAUSE THE
AGENCY DEMONSTRATED THE PROPOSAL WOULD NECESSITATE THE HIRING OF
ADDITIONAL NURSES).
/23/ 31 U.S.C. SEC. 638A(C)(2) PROVIDES, IN PERTINENT PART:
UNLESS OTHERWISE SPECIFICALLY PROVIDED, NO APPROPRIATION AVAILABLE
FOR ANY DEPARTMENT SHALL BE EXPENDED --
* * * *
(2) FOR THE MAINTENANCE, OPERATION, AND REPAIR OF ANY
GOVERNMENT-OWNED PASSENGER MOTOR
VEHICLE OR AIRCRAFT NOT USED EXCLUSIVELY FOR OFFICIAL PURPOSES; AND
"OFFICIAL PURPOSES" SHALL
NOT INCLUDE THE TRANSPORTATION OF OFFICERS AND EMPLOYEES BETWEEN
THEIR DOMICILES AND PLACES OF
EMPLOYMENT, EXCEPT IN CASES OF MEDICAL OFFICERS ON OUT-PATIENT
MEDICAL SERVICE AND EXCEPT IN
CASES OF OFFICERS AND EMPLOYEES ENGAGED IN FIELD WORK THE CHARACTER
OF WHOSE DUTIES MAKES SUCH
TRANSPORTATION NECESSARY AND THEN ONLY AS TO SUCH LATTER CASES WHEN
THE SAME IS APPROVED BY
THE HEAD OF THE DEPARTMENT CONCERNED . . . .
/24/ SECTION 7117(A)(1) PROVIDES:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
(A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY
FEDERAL LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION, EXTEND TO MATTERS
WHICH ARE THE SUBJECT OF ANY RULE OR REGULATION ONLY IF THE RULE OR
REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
/25/ IN DECIDING THAT UNION PROPOSAL 10 IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
/26/ SEE COMP. GEN. B-190440(JANUARY 20, 1978), ISSUED IN CONNECTION
WITH AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2814, AFL-CIO
AND DEPARTMENT OF TRANSPORTATION, FEDERAL RAILROAD ADMINISTRATION, 6
FLRC 323(1978).
/27/ IN DECIDING THAT UNION PROPOSAL 11 IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
/28/ SEE NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE, 6 FLRA NO. 97(1981) (UNION PROPOSAL
III).