64 FLRA No. 19                               

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R1-109

(Union)

and

UNITED STATES DEPARTMENT OF VETERANS AFFAIRS

VA CONNECTICUT HEALTHCARE SYSTEMS

NEWINGTON, CONNECTICUT

(Agency)

0-NG-2770

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

September 29, 2009

_____

Before the Authority:  Carol Waller Pope, Chairman, and

Thomas M. Beck and Ernest DuBester, Members[1]

I.          Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal (Proposal 15(a)).[2]  For the reasons that follow, we find that the proposal is within the duty to bargain.

II.       Proposal  15(a)

If it is determined that there are physical and or psychological reasons that render the employee unable to qualify with the weapon;

a.  the union may bargain to the extent provided by law concerning ergonomic or other accommodative issues including allowing a retesting within accommodative measures bargained for. 

III.       Meaning of the Proposal

The Union contends that the proposal was developed in response to the implementation of an Agency requirement (the Policy) that all Agency police officers be armed.  See Post-Petition Conference Report (Report) at 2.  In connection with the Policy, the Agency designated the Beretta 92D as the firearm that officers would be required to use.  See Agency Statement of Position at 3. 

Under the plain wording of the proposal, the Agency would be required to “bargain to the extent provided by law” in certain circumstances.  Petition for Review, Attachment A (Union Proposals) at unnumbered third page.  Specifically, according to the Union, the Agency would be required to bargain over accommodative measures for employees whom the Agency determines to be physically or psychologically unable to qualify to use the designated firearm.  See Report at 2.  The Union states that the proposal would allow the Agency to determine when an employee is either physically or psychologically unable to qualify, but that such determination could be subject to arbitral review.  See id.  The Agency does not dispute the Union’s statements regarding the meaning of the proposal.  Accordingly, based on the proposal’s terms and the Union’s interpretation, which is consistent with the plain wording of the proposal, we construe the proposal as providing for lawful bargaining on accommodative measures for employees the Agency determines are physically or psychologically unable to qualify to use the firearm the Agency has designated for their use.  See, e.g., NTEU, 61 FLRA 871, 873 (2006) (then-Member Pope dissenting in part on other grounds) (Authority interpreted proposal based on union’s interpretation and plain wording of proposal, noting that agency did not dispute union’s interpretation).  

IV.        Positions of the Parties

            A.        Agency

The Agency contends that the “proposal is moot, th[e] appeal is untimely, and the [U]nion’s continued pursuit of this non-negotiable proposal constitutes an abuse of process.”  Agency Reply at 5.  In this regard, the Agency asserts that:  the Policy has been long implemented (nationally in 2000 and locally in 2003); the Union has bargained over the policy “at both the national level (abortively) and at the local level (successfully)[;]” and the Union “has grieved, filed a ULP, and pursued an EEO complaint over the adverse impact of [the Policy] on the one unit officer who failed to qualify[.]”  Id. at 9. 

The Agency also argues that the proposal affects the Agency’s right to determine its internal security practices under § 7106(a)(1) of the Statute.   In this connection, the Agency asserts that it has exercised its right to determine internal security practices by establishing the Policy.  According to the Agency, the Union’s proposal would undermine the Policy by allowing employees to modify or replace their firearms with different firearms.  The Agency further contends that the proposal does not constitute a negotiable procedure or appropriate arrangement under § 7106(b)(2) or (3), respectively.

Finally, the Agency argues that it has no duty to bargain over the proposal because the subject matter of the proposal is covered by an existing memorandum of understanding (MOU) and because the Agency has no duty to engage in mid-term bargaining.  

B.                 Union

The Union contends that the proposal is a negotiable procedure under

§ 7106(b)(2) of the Statute because the Agency “has no set process or procedure to address . . . employees who fail to qualify with a firearm” and “the union’s proposal is intended to review, and when appropriate remedy a known physical or psychological impediment to firearm qualification.”  Union Response at 8.  The Union also contends that the proposal is a negotiable appropriate arrangement under § 7106(b)(3) of the Statute because the Policy allows individual facilities to determine which firearms to use, and that the proposal would merely permit the use of alternatives envisioned by those guidelines. 

V.        Analysis and Conclusions

A.        The proposal is not moot, and the negotiability appeal does not constitute an abuse of the Authority’s process.

The Agency argues that the proposal is moot and that the Union’s filing of the negotiability appeal constitutes an abuse of the Authority’s process.  Specifically, as discussed above, the Agency contends that the Policy was implemented a long time ago, that bargaining has occurred, and that the Union “has grieved, filed a ULP, and pursued an EEO complaint over the adverse impact of [the Policy] on the one unit officer who failed to qualify[.]”  Agency Reply at 9. 

Section 2429.10 of the Authority’s Regulations states, in pertinent part, that “[t]he Authority . . . will not issue advisory opinions.”  Consistent with this regulation, the Authority will not resolve the negotiability of proposals that are moot. See, e.g., NTEU, Chapter 207, 58 FLRA 409. 410 (2003) (Chairman Cabaniss dissenting).  The Authority has held that a dispute becomes moot when the parties no longer have a legally cognizable interest in the outcome.  See Soc. Sec. Admin., 57 FLRA 264, 268 (2001) (citation omitted) (Member Wasserman dissenting in part).

Even assuming that no employee had been adversely affected by the Policy, the proposal could nonetheless benefit employees who, in the future, fail to either qualify or re-qualify with their firearms for physical or psychological reasons.  As such, the parties continue to have a legally cognizable interest in the outcome of this negotiability appeal, and we find that the proposal is not moot.

With regard to the Agency’s “abuse of process” claim, there is no basis in the record for finding that any of the other proceedings cited by the Agency have resolved the negotiability of the Union’s proposal.  As such, and given that the proposal is not moot, we find no basis for concluding that the Union has abused the Authority’s processes by filing this negotiability appeal.

B.        The appeal is timely.

On September 9, 2004, the Authority granted the Union’s request to withdraw its negotiability petition without prejudice, as the Union had indicated that the petition was related to a pending grievance.  On May 26, 2005, the Union filed a motion requesting reinstatement of its petition.  The Agency filed an opposition to the Union’s motion, arguing that the motion was untimely because the duty to bargain issue was “not properly addressed in the subject grievance, nor otherwise made ripe by any intervening event.”  Agency Opp’n to Union Motion at 3.  Subsequently, the Union provided evidence that the purportedly related grievance had been withdrawn on June 7, 2005 and then settled on June 9, 2005.  See Union’s Reply to the Show Cause Order, Attachments dated June 7 & 9, 2005.

Under § 2424.30(a) of the Authority’s Regulations,

where an exclusive representative files . . . a grievance alleging an unfair labor practice under the parties' negotiated grievance procedure, and the charge or grievance concerns issues directly related to the petition for review filed pursuant to this part, the Authority will dismiss the petition for review . . . without prejudice to the right of the exclusive representative to refile the petition for review after the . . . grievance has been resolved administratively[.] . . .  No later than thirty (30) days after the date on which the . . . grievance is resolved administratively, the exclusive representative may refile the petition for review, and the Authority will determine whether resolution of the petition is still required.

 

            As discussed above, the Union withdrew the allegedly related grievance on June 7, 2005, and the grievance was settled on June 9, 2005.  In addition, its request for reinstatement was timely filed.  Because the Union’s withdrawal request was granted without prejudice to the Union’s right to refile, we will consider the petition.  

C.        The proposal is not contrary to management’s right to determine internal security practices.

It is well established that standard “reopener” proposals – i.e., proposals that specify the conditions under which a party may seek to negotiate mid-term over a subject that is covered by a collective bargaining agreement – are within the duty to bargain.  See, e.g., POPA, 56 FLRA 69, 72-73 (2000) (Chairman Cabaniss & Member Wasserman dissenting in part on other grounds); AFGE, Local 1995, 47 FLRA 470, 471-73 (1993); NAGE, SEIU, AFL-CIO, 24 FLRA 147, 148-49 (1986); AFGE, AFL-CIO, Local 3804, 21 FLRA 870, 889-91 (1986); see also NTEU v. FLRA, 399 F.3d 334, 342 (D.C. Cir. 2005) (court stated that the Authority has “often ordered an agency to bargain over a reopener proposal”).  Proposal 15(a) addresses the conditions under which the Agency would be required to bargain after it determines that physical and/or psychological reasons render an employee unable to qualify with a weapon.  As the proposal seeks to define the scope of the parties’ bargaining rights, it is akin to a negotiable reopener provision.

It also is well established that proposals that “require management to take action in accordance with law[]” are within the duty to bargain.  AFGE, Locals 3807 & 3824, 55 FLRA 1, 5 (1998) (citing NTEU, Chs. 213 & 228, 32 FLRA 578, 581 (1988)); cf. Professional Airways Systems Specialists, 56 FLRA 798, 801 (2000) (where union explained and agency did not dispute that proposal only required agency to exercise its right to assign work in manner consistent with law, Authority found proposal did not affect right to assign work) (citing AFGE, Dep’t of Educ. Council of AFGE Locals, 35 FLRA 56, 62-63 (1990)).[3]

As stated above, Proposal 15(a) expressly would require the Agency to bargain “to the extent provided by law” in certain circumstances.  Specifically, once the Agency has determined that an employee is physically or psychologically unable to qualify with a firearm, the Agency would be required to bargain with the Union over “accommodative measures” for those employees.  Report at 2.  The proposal’s plain wording indicates that the Agency would not be required to bargain in any manner that exceeds legal requirements, which includes any bargaining that would be inconsistent with management’s right to determine internal security practices.  We note, in this regard, that the Union has not offered, and the proposal would not require the Agency to negotiate over, any particular measures.

For the foregoing reasons, we find that the proposal is not contrary to management’s right to determine internal security practices.[4]

D.        The proposal is not outside the duty to bargain on the ground that it addresses matters that allegedly are “covered by” the parties’ MOU.

The parties’ MOU provides, in pertinent part, that the Union “may negotiate additional proposals concerning arming of employees to the extent required by law[,] including[,] but not limited to, implementation of individual station arming policies and programs, including training and education, certifications, firing ranges, practice facilities, etc.”  Agency Statement of Position at 6 (emphasis added).  In other words, the MOU expressly provides for the Union’s right to bargain over proposals concerning the arming of employees.  Although the MOU sets forth an illustrative list of topics that such mid-term bargaining may involve, that list is not exhaustive, as the MOU states that bargaining is “not limited to” those topics.  Id.  As such, we conclude that the Agency has failed to establish that it has no obligation to bargain over the proposal based on the MOU.

VI.       Order

The Agency shall, upon request, or as otherwise agreed to by the parties, negotiate over the proposal.[5]

Member Beck, Dissenting:

I cannot agree with Chairman Pope and Member DuBester that the Union’s proposal is negotiable.  I would instead find that the proposal is not negotiable because it interferes with management’s right to determine its internal security practices under
§ 7106(a)(1) of our Statute.

Internal security practices include “the policies and practices that are necessary to safeguard [an Agency’s] operations, personnel, and physical property against internal and external risks.”  AFGE, Local 1030, 57 FLRA 901, 902 (2002), citing AFGE, Local 1920, 47 FLRA 340, 348 (1993) (emphasis added).     In this case, the Agency determined that it was necessary to arm its security officers after a “number” of “officers and others” were killed or injured in violent incidents at VA medical facilities, including psychiatric wards.  Agency Statement of Position at 2-3.  The Agency identified at least three specific features* of the weapon at issue – the Beretta 92D – that made it the only acceptable weapon for its unique work environment.  The Agency has therefore established a direct “link” between the requirement to use only the Beretta 92D and its concern for the safety of its personnel and the public.  AFGE, Local 1030, 57 FLRA at 902.   Therefore -- and despite the Majority’s effort to avoid the Agency’s internal security concerns by characterizing the proposal as “akin to a negotiable reopener provision” -- I cannot conclude that the proposal does not directly affect the Agency’s right to determine its internal security practices.

Neither would I find that the Union’s proposal could be categorized as either a “procedure” or an “arrangement”.  A proposal that affects a management right is not a “procedure” under § 7106(b)(2) if it requires an agency to adopt a particular practice for safeguarding its personnel.  NTEU, 59 FLRA 844, 847 (2004); IBPO, 47 FLRA 397, 398 (1993).  The Union, in its Petition for Review, acknowledges that its proposal would include either the option to use “alternat[ive] models” or two-handed, as opposed to one-handed, testing.  See Petition for Review at 5.  Neither am I convinced that the Union’s proposal is an “arrangement.”  Any potential benefit to the employees is outweighed by the Agency’s legitimate concerns regarding the unacceptable risks regarding the use of modified or alternative firearms and qualification requirements.  See AFGE, Natl Border Patrol Council, 40 FLRA 521, 544-6 (1991); NAGE, SEIU, Local R7-51, 30 FLRA 415, 419 (1987).  

I am particularly troubled by the Majority’s conclusion that the addition of the language “to the extent provided by law” makes the proposal negotiable.  The addition of that language is inconsequential.  It is axiomatic that all proposals and contract provisions must be consistent with law; the substantive contractual obligation reflected in the proposal is either legally permissible or it is not.  If it is legally permissible, then the addition of the phrase “to the extent provided by law” is superfluous and without effect.  On the other hand, if the substantive contractual obligation contemplated by the proposal is not legally permissible, then the phrase makes the obligation null and void, and the entire proposal is without effect. 

One foreseeable consequence of the Majority’s holding is that, henceforth, all collective bargaining proposals will include the boilerplate linguistic appendage “to the extent provided by law,” and all such proposals -- no matter how frivolous, onerous or ultimately unenforceable -- will be deemed negotiable.  Negotiability will then, in effect, be determined by arbitrators when parties seek to enforce such provisions through the grievance and arbitration process.  Many of the awards in such arbitration cases will then be appealed to the Authority, and the appealing party will argue that the arbitrator erred in determining “the extent provided by law.”  I do not believe this is the process Congress intended for negotiability determinations when it so clearly committed that responsibility to the Authority (see 5 U.S.C. §§ 7105(a)(2)(E) and 7117(c)), and when it mandated that we apply our Statute in a way that promotes “effective and efficient Government.” 
5 U.S.C. § 7101(b).             

Accordingly, I dissent.