National Federation of Federal Employees, Local 1363 and U.S. Army Garrison, Yongsan, Korea (Authority decision, June 26, 1984)

Final FLRA decision. The Authority held that both proposed traffic violation boards were outside the duty to bargain and dismissed the negotiability petition. An aggrieved person may seek judicial review of a final Authority order in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

NFFE Local 1363 proposed two alternative boards to decide whether bargaining-unit employees accused of traffic violations were guilty. One board would include one union appointee, and the other would consist entirely of union appointees. The Authority found that when a traffic violation has a connection to an employee's job, judging guilt is part of management's substantive disciplinary decision. Both proposals would give the union a role in that decision rather than prescribe only procedures for management to follow. The Authority held both proposals outside the duty to bargain and dismissed the petition.

Decision snapshot

• Authority: Management rights and negotiable procedures under 5 U.S.C. § 7106.
• Outcome: Both proposals held nonnegotiable; petition dismissed on the merits.
• Key point: Union participation in deciding guilt would interfere with management's disciplinary decision.

Full text (FLRA public release)

[ v15 p134 ]

15:0134(25)NG

The decision of the Authority follows:

15 FLRA No. 25

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES,
LOCAL 1363
Union

and

U.S. ARMY GARRISON,
YONGSAN, KOREA
Agency

Case No. O-NG-651

DECISION AND ORDER ON NEGOTIABILITY ISSUES

This petition for review comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and raises questions relating to the negotiability of two Union proposals, the texts of which are set forth in the Appendix to this Decision. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. /1/

The two Union proposals which are the subject of the instant petition are alternative proposals dealing with the establishment and operation of a three member board to adjudge allegations of traffic violations involving bargaining unit employees. The only different between the two proposals is the composition of the board. In Union Proposal A the board would be composed of two members appointed by the Agency and one appointed by the Union. In Union Proposal B all three would be appointed by the Union. As explained by the Union, the proposals are intended to make the Union an effective party to, and participant in, judgments rendered on accusations against employees with regard to traffic violations whether they occurred on-duty, off-duty, on-post, or off-post and whether they involved official or privately-owned vehicles.

The imposition of a penalty by an agency because an employee has engaged in a traffic violation under circumstances where there is a nexus between the violation and an employee's job, e.g., as in the present case where an official vehicle is involved, is a disciplinary action within the meaning of section 7106(a)(2) of the Statute and, hence, involves the exercise of a management right. /2/ In National Treasury Employees Union and NTEU Chapter 70 and Department of the Treasury, Internal Revenue Service, Atlanta Service Center, Georgia, 8 FLRA 37 (1982) (Union Proposal 5), the Authority held that a proposal which would require that penalties relating to suspension of parking privileges be discussed with the union prior to their imposition was a negotiable procedure under section 7106(b)(2) of the Statute. /3/ In so holding the Authority specifically noted that the proposal did not prevent the agency from acting at all with respect to disciplining employees and did not limit the penalties which the agency could impose. In the present case, however, contrary to the Union's assertion, the proposals are not procedural in nature but would impinge upon the Agency's right to make substantive determinations pursuant to which the decision to take disciplinary action is made. /4/ In the circumstances to which the proposals would apply, a determination of guilt is a prerequisite and, thus, integrally related to a decision to take disciplinary action. Inasmuch as the proposals would make the Union a participant in judging the guilt of employees accused of traffic violations where a nexus exists between an alleged traffic violation and the employee's job, they would, necessarily, directly interfere with management's substantive determinations to take disciplinary action pursuant to its statutory right. In this regard the proposals are to the same effect as the proposal considered by the Authority in National Federation of Federal Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982). In that case the Authority, relying on reasoning set forth 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 574 (1981), enforced sub nom. National Federation of Federal Employees v. FLRA, 681 F.2d 886 (D.C. Cir. 1982), found that inasmuch as a proposal would allow the union to interject itself into the decision-making process with respect to various management rights, it would directly interfere with those rights. For the reasons expressed in VAMC, East Orange and Homestead Air Force Base, the Authority finds that the proposals herein are not within the duty to bargain.

Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. /5/

Issued, Washington, D.C., June 26, 1984

Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

APPENDIX

Union Proposal A

(3) Reports of traffic violations wherein the person accused is an employee in a bargaining unit represented by Local 1363, a National Federation of Federal Employees, will be considered by a Board of three persons. Two Board members shall be appointed by the agency and one shall be a bargaining unit employee appointed by Local 1363. It is this Board who, by majority vote by secret ballot, shall consider and judge the guilt or innocence of the accused employee.

(a) The Board shall consider the employee to be innocent until proven guilty. The Board and its members shall have the duty to conduct hearings and the authority to administer oaths and to require the presence of any person employed by or assigned to the agency whose presence is considered by a majority of the Board to be necessary to the investigation and consideration of the charge. The Board's decision does not prevent the employee from initiating grievance proceedings over that decision. Board members representing Local 1363 shall be on official time while carrying out the duties of the Board and shall be entitled to official travel, if required, to carry out those duties.

(b) The employee shall have the right to attend the hearing regarding his case and the right to representation by any person of his choosing, including representation by Local 1363, if he so requests. If that representative is a member of a bargaining unit represented by Local 1363, that person shall have the same right to official time and travel as the employee defendant. The employee shall have the right to introduce testimony, affidavits, and evidence of any nature which he feels is relevant to consideration of his case. The employee shall have the right to confront and examine his accusers and the witnesses against him, and the Board shall compel the presence of such persons and place them under oath if within the limits of its authority under subparagraph (a) above. Any employee who appears as a defendant at a hearing before the Board shall be entitled to the use of official time, to include reasonable amounts of official time for the preparation of his defense and for travel to and from the hearing, for that purpose; and shall be entitled to official travel, if required, to attend the hearing.

Union Proposal B

(3) Reports of traffic violations wherein the person accused is an employee in a bargaining unit represented by Local 1363, National Federation of Federal Employees, will be considered by a Board of three bargaining unit employees apponted by Local 1363. It is this Board who, by majority vote by secret ballot, shall consider and judge the guilt or innocence of the accused employee.

(a) The Board shall consider the employee to be innocent until proven guilty. The Board and its members shall have the duty to conduct hearings and the authority to administer oaths and to require the presence of any person employed by or assigned to the agency whose presence is considered by a majority of the Board to be necessary to the investigation and consideration of the charge. The Board's decision does not prevent the employee from initiating grievance proceedings over that decision. Board members representing Local 1363 shall be on official time while carrying out the duties of the Board and shall be entitled to official travel, if required, to carry out those duties.

(b) The employee shall have the right to attend the hearing regarding his case and the right to representation by any person of his choosing, including representation by Local 1363, if he so requests. If that representative is a member of a bargaining unit represented by Local 1363, that person shall have the same right to official time and travel as the employee defendant. The employee shall have the right to introduce testimony, affidavits, and evidence of any nature which he feels is relevant to consideration of his case. The employee shall have the right to confront and examine his accusers and the witnesses against him, and the Board shall compel the presence of such persons and place them under oath if within the limits of its authority under subparagraph (a) above. Any employee who appears as a defendant at a hearing before the Board shall be entitled to the use of official time, to include reasonable amounts of official time for the preparation of his defense and for travel to and from the hearing, for that purpose; and shall be entitled to official travel, if required, to attend the hearing.

--------------- FOOTNOTES$ ---------------

/1/ Contrary to the Agency's assertion, the Authority finds that the Agency, by its failure to respond to the Union's request for an allegation, constructively declared the proposals to be nonnegotiable thereby giving rise to a right of appeal to the Authority by the Union pursuant to section 7117(c) of the Statute and part 2424 of the Authority's Rules and Regulations. See American Federation of Government Employees, AFL-CIO, Local 3028 and Department of Health and Human Services, Public Health Service, Alaska Area Native Health Service, 13 FLRA No. 112 (1984) at page 2.

/2/ Section 7106(a)(2) of the Statute provides, in relevant part:

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 . . . take other disciplinary action against such employees(.)

/3/ Section 7106(b)(2) of the Statute 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/ See American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 603 (1980), enforced sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140, 1152 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S.Ct. 1443 (1982).

/5/ In view of this decision, it is unnecessary to address the other arguments raised by the Agency with respect to the negotiability of the proposal.