NFFE Local 75 and Social Security Administration, Office of Program Operations, Cincinnati, Ohio (Authority decision, April 30, 1982)

Final FLRA decision. The Authority resolved a negotiability appeal. An aggrieved person may seek judicial review in a United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

NFFE Local 75 sought bargaining over union membership solicitation and steps before disciplining union officers or representatives at an SSA office. The Authority held that solicitation during nonwork periods could be negotiable, including paid time when management required no work. It also approved two procedural sentences requiring discussions before discipline. It rejected the final sentence, which would require an Authority ruling before discipline, because that condition would effectively prevent management from acting.

Decision snapshot

• Authority: 5 U.S.C. §§ 7106(a)(2)(A), 7106(b)(2), and 7131(b).
• Outcome: Solicitation proposal and first two discipline procedures negotiable; final discipline sentence nonnegotiable.
• Key point: Procedural discussions could be bargained over, but the union could not require an unavailable advance Authority ruling before discipline.

Full text (FLRA public release)

[ v08 p403 ]

08:0403(85)NG

The decision of the Authority follows:

8 FLRA No. 85

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES LOCAL 75
Union

and

SOCIAL SECURITY ADMINISTRATION,
OFFICE OF PROGRAM OPERATIONS,
CINCINNATI, OHIO
Agency

Case No. O-NG-262

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) (5
U.S.C. 7101 ET SEQ.) AND RAISES THE QUESTION OF THE NEGOTIABILITY OF TWO
UNION PROPOSALS. /1/ UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD,
INCLUDING THE PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING
DETERMINATIONS.

UNION PROPOSAL I

SECTION 4.4. THE EMPLOYER RECOGNIZES THE RIGHT OF THE UNION TO
MEMBERSHIP SOLICITATION
DURING NON-WORK TIME IN NON-WORK AREAS. THE EMPLOYEES' WORK AREA IS
CONSIDERED A NON-WORK AREA IF NO EMPLOYEE IS WORKING.

IN ALLEGING THAT UNION PROPOSAL I IS NONNEGOTIABLE, THE AGENCY RELIES
EXCLUSIVELY ON SECTION 7131(B) OF THE STATUTE. /2/ THE AUTHORITY
CONCLUDES THAT THE PROPOSAL, ON ITS FACE, IS NOT VIOLATIVE OF THE CITED
SECTION AND IS THEREFORE NEGOTIABLE. THE MATTER DISPOSITIVE OF THIS
CASE IS THE MEANING OF THE TERM "NONDUTY STATUS," AS IT APPEARS IN
SECTION 7131(B). IN OKLAHOMA CITY AIR LOGISTICS CENTER (AFLC), TINKER
AIR FORCE BASE, OKLAHOMA AND AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 916, 6 FLRA NO. 32 (1981), THE AUTHORITY
STATED AS FOLLOWS:

(W)HERE, AS HERE, IT HAS BEEN DETERMINED THAT EMPLOYEES, AT THE
DISCRETION OF MANAGEMENT,

HAVE BEEN ASSIGNED PERIODS OF TIME DURING WHICH THE PERFORMANCE OF
JOB FUNCTIONS IS NOT

REQUIRED (I.E., PAID FREE TIME), THE AUTHORITY FINDS THAT SUCH TIME
FALLS WITHIN THE MEANING

OF THE TERM "NONDUTY STATUS" AS USED IN SECTION 7131(B). THUS,
SOLICITATION OF MEMBERSHIP

DURING SUCH TIME IS PERMISSIBLE.

TO THE EXTENT THE INSTANT PROPOSAL PROVIDES THAT SOLICITATION MAY
OCCUR DURING PERIODS OF TIME FOR WHICH MANAGEMENT HAS DETERMINED THAT
PERFORMANCE OF JOB FUNCTIONS IS NOT REQUIRED, IT IS CLEARLY NEGOTIABLE.
THEREFORE, 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 I. /3/

UNION PROPOSAL II

SECTION 4.6. PRIOR TO MANAGEMENT INSTITUTING ANY DISCIPLINARY ACTION
AGAINST A UNION
REPRESENTATIVE OR OFFICER FOR ENGAGING IN ANY UNION ACTIVITY AND IF
MANAGEMENT FEELS THAT AN
EMPLOYEE REPRESENTATIVE IS ENGAGING IN INAPPROPRIATE BEHAVIOR, A
MANAGEMENT OFFICIAL WILL MEET
WITH THE REPRESENTATIVE TO DISCUSS THE MATTER. IF A SATISFACTORY
RESOLUTION OF THE MATTER IS
NOT REACHED DURING THIS DISCUSSION, THE AREA DIRECTOR WILL DISCUSS
THE MATTER WITH THE LOCAL
PRESIDENT OR METROPOLITAN REPRESENTATIVE. IF A SATISFACTORY
RESOLUTION OF THE MATTER IS NOT
REACHED AT THIS LEVEL, MANAGEMENT'S RECOURSE IS TO OBTAIN A RULING
FROM THE AUTHORITY PRIOR TO
TAKING DISCIPLINARY ACTION AGAINST AN OFFICER OR REPRESENTATIVE.

THE ISSUE RAISED BY UNION PROPOSAL II IS WHETHER IT IS INCONSISTENT
WITH THE AGENCY'S AUTHORITY TO DISCIPLINE EMPLOYEES UNDER SECTION
7106(A)(2)(A) OF THE STATUTE. /4/ WITH REGARD TO THE FIRST TWO
SENTENCES OF PROPOSAL II, THE AUTHORITY FINDS THEM NEGOTIABLE UNDER
SECTION 7106(B)(2) /5/ AS A PROCEDURE WHICH WOULD NOT PREVENT THE AGENCY
FROM ACTING AT ALL. 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). THE AUTHORITY, HOWEVER, CONCLUDES THAT THE
PROPOSAL'S LAST SENTENCE VIOLATES THE AGENCY'S SECTION 7106(A)(2)(A)
RIGHT TO DISCIPLINE ITS EMPLOYEES.

WITH REGARD TO THE LAST SENTENCE, NEITHER THE STATUTE NOR THE
AUTHORITY'S RULES AND REGULATIONS EMPOWER THE AUTHORITY TO RULE ON THE
PROPRIETY OF PROPOSED DISCIPLINARY ACTIONS. MOREOVER, EVEN ASSUMING,
ARGUENDO, THAT SOME BASIS FOR AUTHORITY JURISDICTION DID EXIST, THE
PROPOSAL WOULD THEN VIOLATE SECTION 2429.10 OF THE AUTHORITY'S RULES AND
REGULATIONS WHICH PROHIBITS THE ISSUANCE OF ADVISORY OPINIONS, /6/ SINCE
SUCH DECISION, BY THE PROPOSAL'S TERMS, WOULD NOT BIND THE AGENCY. IN
LIGHT OF THE FACT THAT THE LAST SENTENCE OF UNION PROPOSAL II IMPOSES
UPON THE AGENCY'S RIGHT TO DISCIPLINE A CONDITION WHICH THE AGENCY
CANNOT, UNDER LAW OR REGULATION, MEET, IT EFFECTIVELY PREVENTS THE
AGENCY FROM ACTING AT ALL WITH RESPECT TO THAT RIGHT.

THEREFORE, 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 THE FIRST TWO SENTENCES OF PROPOSAL II. /7/ IT IS FURTHER
ORDERED THAT THE PORTION OF THE UNION'S PETITION FOR REVIEW CONCERNING
THE LAST SENTENCE OF PROPOSAL II BE, AND IT HEREBY IS, DISMISSED.

ISSUED, WASHINGTON, D.C., APRIL 30, 1982

RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES: ---------------

/1/ THE AGENCY CONTENDS THAT THE UNION'S PETITION FOR REVIEW SHOULD
BE DISMISSED BECAUSE IT DOES NOT MEET THE CONDITIONS FOR REVIEW SET
FORTH IN SECTION 7117 OF THE STATUTE AND IN THE AUTHORITY'S REGULATION.
NOTING THAT THERE IS NO DISAGREEMENT AS TO WHICH PROPOSALS ARE IN
DISPUTE, THE AUTHORITY REJECTS THE AGENCY'S CONTENTION AND FINDS THE
UNION'S PETITION TO BE PROPERLY BEFORE IT.

/2/ SECTION 7131(B) PROVIDES:

SEC. 7131. OFFICIAL TIME

(B) ANY ACTIVITIES PERFORMED BY ANY EMPLOYEE RELATING TO THE INTERNAL
BUSINESS OF A LABOR ORGANIZATION (INCLUDING THE SOLICITATION OF
MEMBERSHIP, ELECTIONS OF LABOR ORGANIZATION OFFICIALS, AND COLLECTION OF
DUES) SHALL BE PERFORMED DURING THE TIME THE EMPLOYEE IS IN A NONDUTY
STATUS.

/3/ IN FINDING UNION PROPOSAL I NEGOTIABLE, THE AUTHORITY MAKES NO
JUDGMENT AS TO ITS MERITS.

/4/ SECTION 7106(A)(2)(A) 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 SUSPEND, REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER
DISCIPLINARY ACTION

AGAINST SUCH EMPLOYEES(.)

/5/ 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(.)

/6/ SECTION 2429.10 OF THE AUTHORITY'S RULES AND REGULATIONS STATES:

SEC. 2429.10 ADVISORY OPINIONS

THE AUTHORITY AND THE GENERAL COUNSEL WILL NOT ISSUE ADVISORY
OPINIONS.

/7/ IN FINDING A PORTION OF UNION PROPOSAL II NEGOTIABLE, THE
AUTHORITY MAKES NO JUDGMENT AS TO ITS MERITS.