Defense Logistics Council of American Federation of Government Employees Locals and Defense Logistics Agency (Authority decision, March 17, 1987)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority requiring bargaining on two parts of a union proposal following a court remand. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

A union proposed procedures for employees whose driving privileges at Defense Logistics Agency installations could be suspended after an intoxicated driving arrest or apprehension. The Authority had previously found the entire proposal outside the duty to bargain on internal security grounds. A court held that the Authority should have considered the parts separately and found two procedural parts negotiable while upholding the rest of its decision. On remand, the Authority followed that ruling and ordered the agency to bargain on provisions allowing employees to request a stay of personnel action and making actions subject to the grievance procedure. It made no judgment on the proposals' merits.

Decision snapshot

• Authority: Internal security right under 5 U.S.C. § 7106(a)(1); court remand on negotiability.
• Outcome: Bargaining ordered for subsections 2(d) and 2(e); remaining proposal parts stay outside the order.
• Key point: Procedural protections can be negotiable even when other parts of a security related proposal are not.

Full text (FLRA public release)

[ v26 p207 ]

26:0207(26)NG

The decision of the Authority follows:

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.