10:0440(74)NG - AFGE Local 1858 and Army, Army Missile Command, Redstone Arsenal, AL -- 1982 FLRAdec NG
[ v10 p440 ]
10:0440(74)NG
The decision of the Authority follows:
10 FLRA No. 74
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1858
Union
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MISSILE COMMAND, REDSTONE ARSENAL,
ALABAMA
Agency
Case No. O-NG-389
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE AUTHORITY
PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), AND PRESENTS ISSUES
RELATING TO THE NEGOTIABILITY OF FIVE UNION PROPOSALS. /1/ UPON CAREFUL
CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES' CONTENTIONS,
THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
UNION PROPOSAL 1
SECTION 4 - PRIVATE LIVES VS. OFFICIAL DUTIES.
A. THE EMPLOYER AGREES THAT IT SHALL NOT PERMIT ANY DISCRIMINATION
AGAINST ANY EMPLOYEE ON
THE BASIS OF CONDUCT WHICH DOES NOT ADVERSELY AFFECT THE PERFORMANCE
OF THE EMPLOYEE.
B. THE EMPLOYER RECOGNIZES THAT RESULTS OF A CIVIL CASE CONCERNING
AN EMPLOYEE ARE PRIVATE
MATTERS.
C. THE EMPLOYER RECOGNIZES THAT AN EMPLOYEE'S FINANCIAL OBLIGATIONS
OR OBLIGATIONS ALLEGED
BY ANY CREDITOR ARE PRIVATE MATTERS. IN THE EVENT OF A DISPUTE
BETWEEN AN EMPLOYEE AND A
PRIVATE INDIVIDUAL OR FIRM WITH RESPECT TO AN ALLEGED DEBT OR
FINANCIAL OBLIGATION, THE
EMPLOYER SHALL NOT TAKE ANY ACTION AGAINST THE EMPLOYEE WHICH IS
RELATED TO THE ALLEGED OR
REAL DEBT UNLESS DIRECTED BY A COURT.
CONTRARY TO THE AGENCY'S POSITION, PARAGRAPH A OF UNION PROPOSAL 1 IS
NOT CONCERNED WITH AND, HENCE, IS NOT INCONSISTENT WITH THE AGENCY'S
RIGHTS TO IMPOSE DISCIPLINE, REMOVE EMPLOYEES, OR MAKE SUITABILITY OR
FITNESS DETERMINATIONS BASED ON ANY CRIMINAL CONVICTIONS PURSUANT TO
APPLICABLE LAWS AND REGULATIONS. RATHER, THE PROPOSAL ONLY WOULD
PROHIBIT DISCRIMINATION AGAINST EMPLOYEES BASED ON CONDUCT NOT AFFECTING
JOB PERFORMANCE. SUCH DISCRIMINATION IS PROHIBITED BY 5 U.S.C.
2302(B)(10). /2/ FURTHERMORE, SUCH PROHIBITION UNDER LAW AFFECTS
CONDITIONS OF EMPLOYMENT AND MAY BE ENFORCED THROUGH THE NEGOTIATED
GRIEVANCE PROCEDURE UNLESS THE PARTIES EXCLUDE THE MATTER THROUGH
COLLECTIVE BARGAINING. NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL
REVENUE SERVICE, 3 FLRA 693(1980), UNION PROPOSAL II. THEREFORE, FOR
THE REASONS DETAILED IN INTERNAL REVENUE SERVICE 3 FLRA 693, 696-9,
PARAGRAPH A OF UNION PROPOSAL 1 IS WITHIN THE DUTY TO BARGAIN.
WITH RESPECT TO PARAGRAPH B OF THE PROPOSAL, THE AGENCY STATES THAT
IF THE PROPOSAL MEANS "ONLY THAT INFORMATION PERTAINING TO CIVIL
LITIGATION IS PRIVILEGED AND WILL BE TREATED AS SUCH BY THE EMPLOYER,"
IT IS NEGOTIABLE. THE UNION TACITLY AGREED TO SUCH INTERPRETATION BY
FILING NO RESPONSE TO THE AGENCY STATEMENT. THE AUTHORITY THEREFORE
ADOPTS THE INTERPRETATION STATED BY THE AGENCY AND CONCLUDES THAT ANY
DISPUTE WITH REGARD TO PARAGRAPH B HAS BEEN RENDERED MOOT.
AS TO PARAGRAPH C, IT IS OUTSIDE THE DUTY TO BARGAIN BECAUSE IT IS
INCONSISTENT WITH MANAGEMENT'S RIGHT TO TAKE "DISCIPLINARY ACTION"
AGAINST EMPLOYEES FOR, E.G., FAILURE TO PAY JUST FINANCIAL OBLIGATIONS
UNDER SECTION 7106(A)(2)(A) OF THE STATUTE. IN THIS CONNECTION, 5 CFR
735.207(1982) REQUIRES THAT, "AN EMPLOYEE SHALL PAY EACH JUST FINANCIAL
OBLIGATION IN A PROPER AND TIMELY MANNER . . . . " FURTHER, 5 CFR
735.107 MANDATES THAT AGENCY REGULATIONS GOVERNING EMPLOYEE CONDUCT,
WHICH INCLUDES INDEBTEDNESS, " . . . SHALL PROVIDE THAT A VIOLATION OF
THE AGENCY REGULATIONS BY AN EMPLOYEE . . . MAY BE CAUSE FOR APPROPRIATE
DISCIPLINARY ACTION WHICH MAY BE IN ADDITION TO ANY PENALTY PRESCRIBED
BY LAW." CONSEQUENTLY, AS THE PROPOSAL WOULD PREVENT MANAGEMENT FROM
ENFORCING ITS REGULATIONS GOVERNING INDEBTEDNESS BY TAKING "APPROPRIATE
DISCIPLINARY ACTION" UNLESS DIRECTED TO DO SO BY A COURT, IT IS
INCONSISTENT WITH SECTION 7106(A)(2)(A) AND IS OUTSIDE THE DUTY TO
BARGAIN.
UNION PROPOSAL 2
SECTION 16 - SUPERVISION AND ASSIGNMENT OF WORK.
CONSISTENT WITH THE MANAGEMENT RIGHT TO ASSIGN WORK TO EMPLOYEES AND
TO DETERMINE METHODS
AND MEANS OF PERFORMING WORK, EMPLOYEES CAN EXPECT ASSIGNMENTS TO BE
MADE WITHIN REASONABLE
BOUNDS, CONSISTENT WITH GRADE LEVEL, POSITION DESCRIPTION AND
PERFORMANCE. EMPLOYEES WILL
RECEIVE INSTRUCTIONS FROM AND MAKE REPORTS THROUGH ESTABLISHED
SUPERVISORY CHANNELS AS
DESCRIBED OR DEPICTED IN PERTINENT POSITION DESCRIPTIONS. THE
IMMEDIATE SUPERVISOR SHALL BE
RESPONSIBLE FOR ALL ASSIGNMENTS TO THE EMPLOYEE AND FOR MAKING
APPRAISALS OF THE EMPLOYEE'S
WORK.
CONTRARY TO THE CONTENTIONS OF THE AGENCY, THE FIRST SENTENCE OF
UNION PROPOSAL 2 IS NOT INCONSISTENT WITH THE RIGHT, UNDER SECTION
7106(A)(2)(B) OF THE STATUTE, "TO ASSIGN WORK." RATHER, THE NET EFFECT
OF THAT SENTENCE WOULD BE TO REQUIRE ONLY THAT, AS A GENERAL MATTER,
WORK ASSIGNMENTS WILL BE MADE IN A MANNER WHICH IS REFLECTIVE OF THE
EMPLOYEE'S GRADE LEVEL AND PERFORMANCE REQUIREMENTS. THUS, THE FIRST
SENTENCE IS WITHIN THE DUTY TO BARGAIN. CF. AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE
SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW JERSEY, 2 FLRA 153(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). (PROPOSAL REQUIRING
POSITION DESCRIPTIONS TO REFLECT ACCURATELY DUTIES REGULARLY ASSIGNED TO
EMPLOYEES IS WITHIN THE DUTY TO BARGAIN.)
IN LIKE MANNER, THE SECOND SENTENCE OF THIS PROPOSAL MERELY WOULD
REQUIRE THAT MANAGEMENT ACCURATELY DEPICT IN EMPLOYEE POSITION
DESCRIPTIONS THE "SUPERVISORY CHANNELS" WHICH IT HAS ESTABLISHED. OF
COURSE, SHOULD MANAGEMENT WISH TO REVISE ITS SUPERVISORY STRUCTURE, THE
SECOND SENTENCE OF THE PROPOSAL WOULD NOT PREVENT SUCH REVISION.
MANAGEMENT ONLY WOULD BE OBLIGATED BY THE PROPOSAL TO REFLECT SUCH
MODIFICATIONS IN POSITION DESCRIPTIONS, AS APPLICABLE. ACCORDINGLY, THE
SECOND SENTENCE OF THE PROPOSAL IS ALSO NEGOTIABLE.
BY CONTRAST, THE THIRD SENTENCE OF UNION PROPOSAL 2 SPECIFIES WHICH
PERSONNEL WITHIN THE AGENCY WILL PROVIDE INSTRUCTIONS AND WORK
ASSIGNMENTS TO, AND EVALUATE THE WORK PERFORMANCE OF, BARGAINING UNIT
EMPLOYEES. THUS, THIS WOULD IMPLICITLY PREVENT ASSIGNING THOSE
FUNCTIONS TO OTHER PERSONNEL AND, IN THIS REGARD, IS NOT MATERIALLY
DIFFERENT FROM SECTION 8 OF THE UNION PROPOSAL BEFORE THE AUTHORITY IN
CONGRESSIONAL RESEARCH EMPLOYEES ASSOCIATION AND THE LIBRARY OF
CONGRESS, 3 FLRA 737(1980). (PROPOSAL WHICH ASSIGNED SPECIFIC DUTIES TO
PARTICULAR POSITIONS IS HELD OUTSIDE THE DUTY TO BARGAIN.) FOR THE
REASONS DETAILED IN THAT DECISION, THE AUTHORITY FINDS THE THIRD
SENTENCE OF UNION PROPOSAL 2 HEREIN IS OUTSIDE THE DUTY TO BARGAIN, IN
THAT IT IS INCONSISTENT WITH MANAGEMENT'S RIGHT "TO ASSIGN WORK" UNDER
SECTION 7106(A)(2)(B) OF THE STATUTE.
UNION PROPOSAL 3
SECTION 19 - SERVICES FOR VISUALLY HANDICAPPED AND/OR DEAF EMPLOYEES.
A. QUALIFIED READERS AND INTERPRETERS FOR HANDICAPPED EMPLOYEES.
THE DEPARTMENT SHALL
MAINTAIN A QUALIFIED EMPLOYEE WHO WILL INTERPRET FOR DEAF EMPLOYEES
OR READ FOR VISUALLY
HANDICAPPED EMPLOYEES WHEN NEEDED TO ASSIST IN THE ACCOMPLISHMENT OF
OFFICIAL WORK.
B. TAPED DOCUMENTS. THE DEPARTMENT SHALL MAINTAIN AND PROVIDE, FOR
THE USE OF VISUALLY
HANDICAPPED EMPLOYEES, TAPED COPIES OF:
(1) THIS AGREEMENT, AND
(2) REGULATIONS AND OTHER DOCUMENTS NEEDED BY VISUALLY HANDICAPPED
EMPLOYEES IN THEIR JOB.
C. TELETYPEWRITER FOR DEAF EMPLOYEES. THE EMPLOYER AGREES TO
PURCHASE AND INSTALL A
TELETYPEWRITER IN BUILDINGS WHERE THERE ARE DEAF EMPLOYEES, FOR THOSE
EMPLOYEES' USE. (ONLY
PARAGRAPH B(1) OF THIS PROPOSAL IS NOT IN DISPUTE.)
IN AGREEMENT WITH THE AGENCY, THE AUTHORITY FINDS THAT PARAGRAPH A OF
UNION PROPOSAL 3 WOULD REQUIRE THE AGENCY TO HIRE OR ASSIGN AN EMPLOYEE
WITH SPECIFIED QUALIFICATIONS. SUCH A REQUIREMENT IS INCONSISTENT WITH
THE DISCRETION INHERENT IN MANAGEMENT'S RIGHT UNDER SECTION
7106(A)(2)(A) "TO HIRE" AND "ASSIGN" EMPLOYEES OR TO DECIDE NOT TO TAKE
SUCH ACTIONS. ACCORDINGLY, PARAGRAPH A IS OUTSIDE THE DUTY TO BARGAIN.
IN FURTHER AGREEMENT WITH THE AGENCY, THE AUTHORITY FINDS THAT
PARAGRAPHS B AND C OF UNION PROPOSAL 3, BY REQUIRING THE ACQUISITION
AND/OR USE OF CERTAIN TAPED DOCUMENTS AND TELETYPEWRITER EQUIPMENT,
CLEARLY CONCERN THE "TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK"
WITHIN THE MEANING OF SECTION 7106(B)(1) OF THE STATUTE. SEE NATIONAL
TREASURY EMPLOYEES UNION AND U.S. CUSTOMS SERVICE REGION VIII, SAN
FRANCISCO, CALIFORNIA, 2 FLRA 255(1979); AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1917 AND U.S. DEPARTMENT OF
JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, NEW YORK CITY DISTRICT
OFFICE, 4 FLRA NO. 25(1980). UNDER SECTION 7106(B)(1) SUCH MATTERS ARE
NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY. HENCE, IN LIGHT OF THE
AGENCY'S ELECTION NOT TO BARGAIN, PARAGRAPHS B AND C ARE NONNEGOTIABLE.
UNION PROPOSAL 4
SECTION 20 - PROHIBITED INVESTIGATIVE TECHNIQUES.
A. THE USE OF INVESTIGATIVE METHODS EMPLOYING EQUIPMENT SUCH AS
ELECTRICAL, ELECTRONIC,
OPTICAL, CHEMICAL, OR MECHANICAL SURVEILLANCE DEVICES SHALL BE
PROHIBITED EXCEPT FOR NATIONAL
SECURITY PURPOSES. IN THE EVENT THAT THESE DEVICES ARE USED FOR
NATIONAL SECURITY PURPOSES,
THEIR USE SHALL BE IN ACCORDANCE WITH LAW AND GOVERNMENTWIDE
REGULATIONS. ANY INCIDENTAL
INFORMATION OBTAINED DURING A SECURITY INVESTIGATION THAT IS
UNRELATED TO NATIONAL SECURITY
SHALL BE VOID AND SHALL NOT BE USED TO INTIMIDATE, COERCE, HARASS, OR
TO INITIATE LEGAL OR
CRIMINAL COURT ACTION AGAINST ANY EMPLOYEE OR GROUP OF EMPLOYEES.
ANY INFORMATION OBTAINED
DURING A SECURITY INVESTIGATION, UNRELATED TO NATIONAL SECURITY,
SHALL BE IMMEDIATELY
DESTROYED.
B. THE USE OF INVESTIGATION DEVICES SUCH AS THE POLYGRAPH OR THE
VOICE-STRESS-ANALYZER OR
ANY DEVICE OR EQUIPMENT THAT MONITORS (FOR OPERATOR INTERPRETATION)
THE PHYSIOLOGICAL FOR
PHYSIOLOGICAL REACTIONS OF THE HUMAN BODY, SHALL BE PROHIBITED IN ANY
CASE.
THE AGENCY INDICATES WITHOUT CONTROVERSION THAT THE INVESTIGATIVE
TECHNIQUES WHICH THE PROPOSAL WOULD PROHIBIT ARE PART OF THE "INTERNAL
SECURITY PRACTICES" ADOPTED TO SAFEGUARD AGENCY PERSONNEL AND PROPERTY,
AS WELL AS THE NATIONAL SECURITY. CONSEQUENTLY, IN THE ABSENCE OF ANY
UNION ARGUMENT TO THE CONTRARY, THE AUTHORITY FINDS, IN AGREEMENT WITH
THE AGENCY, THAT THE UNION'S PROPOSAL THEREBY INTERFERES WITH THE
AGENCY'S ESTABLISHMENT OF "INTERNAL SECURITY PRACTICES" UNDER SECTION
7106(A)(1) OF THE STATUTE AND IS OUTSIDE THE DUTY TO BARGAIN. SEE
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)
(PROPOSAL 8).
UNION PROPOSAL 5
SECTION 21 - COMPLIANCE WITH INTERNAL REGULATIONS.
THE EMPLOYER SHALL ABIDE BY HIS OWN INTERNAL REGULATIONS. ANY
COMPLAINT BY AN EMPLOYEE OF
THE BARGAINING UNIT THAT THE EMPLOYER HAS FAILED TO FOLLOW HIS OWN
INTERNAL REGULATIONS, IF
SUBSTANTIATED BY THE EVIDENCE SUBMITTED SHALL RESULT IN THE EFFECTING
OF THE CORRECTIVE ACTION
REQUESTED BY THE EMPLOYEE. FAILURE BY THE EMPLOYER TO DO SO SHALL
CONSTITUTE PRIMA FACIE
EVIDENCE OF THE EMPLOYERS' (SIC) INTENT TO CIRCUMSCRIBE (SIC) THE
REGULATION(S).
IN AGREEMENT WITH THE AGENCY, AND IN THE ABSENCE OF ANY EXPLANATION
AS TO THE MEANING OF ITS PROPOSAL BY THE UNION, THE AUTHORITY FINDS THAT
THE PURPOSE AND EFFECT OF THE PROPOSED LANGUAGE IS NOT SUFFICIENTLY
CLEAR TO PERMIT A DETERMINATION AS TO WHETHER ITS NEGOTIATION WOULD BE
CONSISTENT WITH APPLICABLE LAWS AND REGULATIONS. CONSEQUENTLY, UNION
PROPOSAL 5 IS NOT SUFFICIENTLY SPECIFIC AND DELIMITED TO PROVIDE THE
AUTHORITY WITH A BASIS UPON WHICH TO DETERMINE ITS NEGOTIABILITY. SEE
ASSOCIATION OF CIVILIAN TECHNICIANS, ALABAMA ACT AND STATE OF ALABAMA
NATIONAL GUARD, 2 FLRA 314(1979).
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS, IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS
OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING PARAGRAPH A OF
UNION PROPOSAL 1 AND THE FIRST AND SECOND SENTENCES OF UNION PROPOSAL 2.
/3/ IT IS FURTHER ORDERED THAT THE UNION'S PETITION FOR REVIEW AS TO
PARAGRAPHS B AND C OF UNION PROPOSAL 1, THE THIRD SENTENCE OF UNION
PROPOSAL 2, AND UNION PROPOSALS 3, 4 AND 5 BE, AND IT HEREBY IS,
DISMISSED.
ISSUED, WASHINGTON, D.C., NOVEMBER 4, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ DURING THE PENDENCY OF THIS CASE, THE AGENCY WITHDREW ITS
ALLEGATION OF NONNEGOTIABILITY WITH RESPECT TO A SIXTH PROPOSAL
CONCERNING USE OF AUDIO DEVICES. THE ISSUE AS TO THAT PROPOSAL WAS
THEREFORE RENDERED MOOT.
/2/ 5 U.S.C. 2302(B)(10) PROVIDES:
SEC. 2302. PROHIBITED PERSONNEL PRACTICES
* * * *
(B) ANY EMPLOYEE WHO HAS AUTHORITY TO TAKE, DIRECT OTHERS TO TAKE,
RECOMMEND, OR APPROVE
ANY PERSONNEL ACTION, SHALL NOT, WITH RESPECT TO SUCH AUTHORITY--
* * * *
(10) DISCRIMINATE FOR OR AGAINST ANY EMPLOYEE OR APPLICANT FOR
EMPLOYMENT ON THE BASIS OF
CONDUCT WHICH DOES NOT ADVERSELY AFFECT THE PERFORMANCE OF THE
EMPLOYEE OR APPLICANT OR THE
PERFORMANCE OF OTHERS; EXCEPT THAT NOTHING IN THIS PARAGRAPH SHALL
PROHIBIT AN AGENCY FROM
TAKING INTO ACCOUNT IN DETERMINING SUITABILITY OR FITNESS ANY
CONVICTION OF THE EMPLOYEE OR
APPLICANT FOR ANY CRIME UNDER THE LAWS OF ANY STATE, OF THE DISTRICT
OF COLUMBIA, OR OF THE
UNITED STATES(.)
/3/ IN DECIDING THAT PARAGRAPH A OF UNION PROPOSAL 1 AND THE FIRST
TWO SENTENCES OF UNION PROPOSAL 2 ARE WITHIN THE DUTY TO BARGAIN, THE
AUTHORITY MAKES NO JUDGMENT AS TO THEIR MERITS.