American Federation of Government Employees, Local 1917, AFL-CIO (Union) and U.S. Department of Justice, Immigration and Naturalization Service, New York City District Office (Activity)
[ v04 p150 ]
04:0150(25)NG
The decision of the Authority follows:
4 FLRA No. 25
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1917
(Union)
and
U.S. DEPARTMENT OF JUSTICE,
IMMIGRATION AND NATURALIZATION
SERVICE, NEW YORK CITY DISTRICT OFFICE
(Activity)
Case No. O-NG-215
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1917
(Union)
and
U.S. DEPARTMENT OF JUSTICE,
IMMIGRATION AND NATURALIZATION
SERVICE, NEW YORK CITY DISTRICT OFFICE
(Activity)
Case No. O-NG-216
CONSOLIDATED DECISION ON NEGOTIABILITY APPEALS
THESE CASES COME BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.). INASMUCH AS
BOTH CASES INVOLVE THE SAME PARTIES AND ARISE OUT OF THE SAME
NEGOTIATIONS, THE AGENCY'S UNOPPOSED REQUEST THAT THE CASES BE
CONSOLIDATED FOR CONSIDERATION AND DECISION IS GRANTED.
THE RECORD BEFORE THE AUTHORITY DISCLOSES THAT THE INSTANT CASES
ARISE OUT OF NEGOTIATIONS BETWEEN THE UNION AND THE ACTIVITY FOR A LOCAL
SUPPLEMENT TO AN EXISTING MASTER AGREEMENT NEGOTIATED AT THE NATIONAL
LEVEL BETWEEN THE IMMIGRATION AND NATURALIZATION SERVICE (INS) AND THE
AFGE COUNCIL OF INS LOCALS. DURING NEGOTIATIONS AT THE LOCAL LEVEL, THE
UNION SUBMITTED A NUMBER OF PROPOSALS WHICH THE ACTIVITY, WITH THE
EXCEPTION OF PROPOSAL A2 SET FORTH AND DISCUSSED SEPARATELY BELOW,
DECLARED TO BE IN CONFLICT WITH PROVISIONS CONTAINED IN THE MASTER
AGREEMENT. THE UNION'S PROPOSALS ARE SET FORTH IN AN APPENDIX HERETO.
THE UNION THEREAFTER FILED THE PETITIONS FOR REVIEW INVOLVING THE
PROPOSALS CONTAINED IN THE APPENDIX, WHICH PETITIONS HAVE BEEN
CONSOLIDATED FOR DECISION HEREIN. CONTRARY TO THE AGENCY'S ASSERTIONS,
THE AUTHORITY FINDS THE PETITIONS FOR REVIEW WERE TIMELY FILED, PROPERLY
SERVED, AND OTHERWISE PROCEDURALLY SUFFICIENT UNDER THE AUTHORITY'S
RULES AND REGULATIONS. MOREOVER, IT DOES NOT APPEAR THE AGENCY WAS
PREJUDICED IN ANY MANNER AS A RESULT OF THE PROCEDURAL IRREGULARITIES
ALLEGED IN ITS STATEMENT OF POSITION.
THE AGENCY FURTHER CONTENDS, IN RESPONSE TO THE UNION'S APPEALS
HEREIN, INTER ALIA, THAT ALL OF THE UNION'S PROPOSALS (EXCEPT PROPOSAL
A2) ARE "IN CONTRAVENTION OF CERTAIN CONTROLLING PROVISIONS OF THE
MASTER AGREEMENT . . . " THE UNION ASSERTS, HOWEVER, THAT "(T)HE
QUESTION OF WHETHER THE UNION'S PROPOSALS VIOLATE THE PARTIES'
NEGOTIATED AGREEMENT IS ONE WHICH THE PARTIES MUST SETTLE BETWEEN
THEMSELVES ACCORDING TO THEIR NEGOTIATED ARRANGEMENTS" AND THAT "THE
AUTHORITY SHOULD IGNORE THIS INTERNAL DISPUTE BETWEEN THE PARTIES AS A
MATTER THAT DOES NOT FALL WITHIN ITS JURISDICTION AT THIS TIME."
AS INDICATED ABOVE, THE PARTIES ARE ESSENTIALLY IN DISPUTE CONCERNING
THE THRESHOLD QUESTION AS TO WHETHER THE MASTER AGREEMENT, NEGOTIATED AT
THE NATIONAL LEVEL, AUTHORIZES BARGAINING AT THE LOCAL LEVEL ON CERTAIN
MATTERS CONTAINED THEREIN. IN AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1661 AND DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL CORRECTIONAL INSTITUTION, DANBURY, CONNECTICUT, 2 FLRA
NO. 56(1980), THE AUTHORITY DECIDED, WITH RESPECT TO A QUESTION
SUBSTANTIALLY IDENTICAL TO THOSE PRESENTED HERE, THAT THE PROPER FORUM
IN WHICH TO RESOLVE DISPUTES OVER THE MEANING OF PROVISIONS CONTAINED IN
THE MASTER AGREEMENT WOULD BE THAT WHICH THE PARTIES THEMSELVES HAVE
ADOPTED FOR SUCH PURPOSE. FOR THE REASONS FULLY SET FORTH IN THAT
DECISION, THE AUTHORITY FINDS THE INSTANT PETITION IS NOT APPROPRIATE
FOR RESOLUTION UNDER THE PROCEDURES SET FORTH IN SECTION 7117 OF THE
STATUTE AND PART 2424 OF THE AUTHORITY'S RULES AND REGULATIONS. SEE
ALSO AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2272
AND DEPARTMENT OF JUSTICE, U.S. MARSHALS SERVICE, DISTRICT OF COLUMBIA,
2 FLRA NO. 113(1980).
ACCORDINGLY, AND APART FROM OTHER CONSIDERATIONS, THE UNION'S APPEAL
IS HEREBY DENIED, WITHOUT PREJUDICE TO THE RENEWAL OF ITS CONTENTION
THAT THE MATTERS IN DISPUTE ARE NEGOTIABLE UNDER THE STATUTE IN A
PETITION DULY FILED WITH THE AUTHORITY AFTER IT IS RESOLVED, UNDER
APPLICABLE PROCEDURES, THAT BARGAINING ON SUCH MATTERS IS NOT PRECLUDED
BY THE CONTROLLING AGREEMENT.
THE ONLY REMAINING ISSUE INVOLVES THE NEGOTIABILITY OF UNION PROPOSAL
A2, WHICH PROVIDES AS FOLLOWS:
UNION PROPOSAL
PROPOSAL A2. ARTICLE 3, USE OF OFFICIAL FACILITIES
A GUN BOX OR SIMILARLY SECURE AREA SHALL BE MADE AVAILABLE TO SEAPORT
INSPECTORS WHILE ON
DUTY IN THE DISTRICT OFFICE AND TO DETENTION OFFICERS WHILE ON DUTY
INSIDE THE SERVICE
PROCESSING CENTER. THIS AREA SHALL BE USED EXCLUSIVELY FOR THE
STORAGE OF WEAPONS NOT
REQUIRED BY THE OFFICER AT THAT TIME.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL A2 IS OUTSIDE THE AGENCY'S
DUTY TO BARGAIN UNDER SECTION 7117 OF THE STATUTE /1/ BECAUSE IT DOES
NOT RELATE TO THE CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES. A FURTHER
QUESTION IS WHETHER SUCH PROPOSAL CONCERNS A MATTER RELATED TO THE
TECHNOLOGY OF PERFORMING THE WORK OF THE AGENCY, WHICH UNDER SECTION
7106(B)(1), IS NEGOTIABLE SOLELY AT THE ELECTION OF THE AGENCY. /2/
OPINION
CONCLUSION: UNION PROPOSAL A2 IN PART IS OUTSIDE THE AGENCY'S DUTY
TO BARGAIN UNDER SECTION 7117 OF THE STATUTE AND IN PART VIOLATES THE
AGENCY'S RIGHT TO DETERMINE THE TECHNOLOGY OF PERFORMING ITS WORK UNDER
SECTION 7106(B)(1) OF THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION
2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10)), THE
AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
IS SUSTAINED.
REASONS: THE FOREGOING PROPOSAL WOULD REQUIRE THE ACTIVITY TO
PROVIDE A STORAGE AREA OR "GUN BOX" ON ITS PREMISES WHERE THE EMPLOYEES
WOULD BE ABLE TO SECURE THEIR WEAPONS DURING WORKING HOURS INSTEAD OF
LEAVING SUCH WEAPONS IN LESS SECURE AREAS SUCH AS THE EMPLOYEES'
PRIVATELY OWNED VEHICLES. THE UNION CONTENDS PROPOSAL A2 "IS A 'WORKING
CONDITION' IN THE SAME SENSE THAT FACILITIES ARE PROVIDED FOR ANY OTHER
PERSONAL PROPERTY STORAGE PURPOSE," AND, FURTHER, THAT "(I)NSOFAR AS THE
GUNBOX WOULD BE USED TO STORE THE EMPLOYER'S OFFICIALLY ISSUED HANDGUNS,
THE PROPOSAL CONSTITUTES AN 'APPROPRIATE ARRANGEMENT'" AS PROVIDED IN
SECTION 7106(B)(3) OF THE STATUTE. /3/ THE AGENCY ASSERTS, ON THE OTHER
HAND, THAT INSOFAR AS THE PURPOSE OF UNION PROPOSAL A2 IS TO PROVIDE
"PHYSICAL SECURITY FOR PRIVATELY OWNED WEAPONS WHICH (CERTAIN UNIT
EMPLOYEES) CHOOSE OR MAY CHOOSE TO CARRY WITH THEM WHILE ON THEIR WAY TO
AND FROM WORK (I.E. OFF DUTY) FOR THEIR OWN PROTECTION (AND ARE
CURRENTLY LEAVING IN THEIR OWN VEHICLES), IT DOES NOT ADDRESS, AND WOULD
NOT AFFECT THE WORKING CONDITIONS OF SUCH EMPLOYEES AS DEFINED IN
(SECTION 7103(A)(12) OF THE STATUTE AND) IS, THEREFORE, NOT A MANDATORY
SUBJECT FOR BARGAINING." THE AGENCY FURTHER ASSERTS THAT, TO THE EXTENT
THE PROPOSAL ADDRESSES THE STORAGE OF OFFICIAL WEAPONS WHICH UNIT
EMPLOYEES ARE AUTHORIZED TO WEAR, THE PROPOSAL IS EXCEPTED FROM THE
OBLIGATION TO BARGAIN BECAUSE, AMONG OTHER THINGS, IT CONCERNS THE
TECHNOLOGY OF PERFORMING THE AGENCY'S WORK WITHIN THE MEANING OF SECTION
7106(B)(1) OF THE STATUTE (SUPRA NOTE 2).
THE AUTHORITY FINDS, IN AGREEMENT WITH THE AGENCY, THAT UNION
PROPOSAL A2 IS OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE. THUS, AS
THE UNION'S STATED PURPOSE IS, IN PART, TO PROVIDE A SECURE STORAGE AREA
FOR UNIT EMPLOYEES' PRIVATE WEAPONS WHICH ARE NEITHER REQUIRED NOR
PERMITTED TO BE USED IN THE PERFORMANCE OF SUCH EMPLOYEES' OFFICIAL
DUTIES, IT IS CONCLUDED THAT UNION PROPOSAL A2 IS NOT DIRECTLY RELATED
TO THE PERSONNEL POLICIES, PRACTICES AND MATTERS AFFECTING WORKING
CONDITIONS OF UNIT EMPLOYEES AND THEREFORE IS NOT WITHIN THE SCOPE OF
BARGAINING UNDER SECTION 7117 OF THE STATUTE.
THE AUTHORITY FINDS FURTHER, INSOFAR AS THE DISPUTED PROPOSAL IS
INTENDED TO REQUIRE THE ACTIVITY TO PROVIDE A SECURE STORAGE AREA FOR
THE OFFICIAL WEAPONS WHICH UNIT EMPLOYEES ARE AUTHORIZED TO WEAR IN THE
PERFORMANCE OF THEIR DUTIES, IT CONCERNS THE "TECHNOLOGY . . . OF
PERFORMING WORK" WITHIN THE MEANING OF SECTION 7106(B)(1) OF THE STATUTE
AND IS, THEREFORE, NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY. UNION
PROPOSAL A2 WOULD REQUIRE AND THEREFORE WOULD BE DETERMINATIVE OF
WHETHER THE ACTIVITY WILL ADOPT A PARTICULAR TECHNOLOGY OF PERFORMING
WORK, E.G., THE USE OF A "GUN BOX" AS OPPOSED TO SOME OTHER SECURE
FACILITY FOR THE STORAGE OF ITS OFFICIAL WEAPONS, OR NO STORAGE FACILITY
AT ALL. IT DOES NOT MERELY PROVIDE THE UNION WILL HAVE ACCESS TO A
PARTICULAR WEAPONS STORAGE FACILITY WHICH MANAGEMENT HAS SELECTED AND
WHICH IS IN EXISTENCE FOR SUCH PURPOSE. /4/ ACCORDINGLY, CONTRARY TO
THE UNION'S ASSERTION, THE DISPUTED PROPOSAL DOES NOT CONSTITUTE MERELY
AN "APPROPRIATE ARRANGEMENT" FOR EMPLOYEES "ADVERSELY AFFECTED" BY THE
EXERCISE OF MANAGEMENT AUTHORITY WITHIN THE MEANING OF SECTION
7106(B)(3) OF THE STATUTE (SUPRA NOTE 3), INASMUCH AS MANAGEMENT HAS NOT
YET EXERCISED ANY SUCH AUTHORITY. RATHER, THE PROPOSAL INSTEAD SEEKS TO
REQUIRE MANAGEMENT TO EXERCISE ITS RIGHTS IN A PARTICULAR MANNER,
NOTWITHSTANDING MANAGEMENT'S ELECTION NOT TO BARGAIN WITH RESPECT
THERETO.
THEREFORE SINCE UNION PROPOSAL A2 CONCERNS A MATTER RELATED TO THE
TECHNOLOGY OF PERFORMING THE WORK OF THE AGENCY, WHICH, UNDER SECTION
7106(B)(1) OF THE STATUTE, IS NEGOTIABLE ONLY AT THE ELECTION OF THE
AGENCY, THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS OUTSIDE THE DUTY TO
BARGAIN MUST BE SUSTAINED.
ISSUED, WASHINGTON, D.C., SEPTEMBER 4, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
PROPOSALS IN CASE NO. 0-NG-215
PROPOSAL A1. ARTICLE 2, UNION RELATIONS AT THE LOCAL LEVEL.
REPRESENTATIVES OF THE DISTRICT AND THE LOCAL SHALL HAVE THE
OPPORTUNITY AT ANY TIME TO MEET AT THE REQUEST OF EITHER PARTY FOR THE
SETTLEMENT OF LOCAL PROBLEMS AND FOR THE IMPROVEMENT OF COMMUNICATIONS,
UNDERSTANDING, AND COOPERATION BETWEEN THE DISTRICT AND ITS EMPLOYEES.
A MEETING SHALL BE HELD MONTHLY BETWEEN THE PRESIDENT OF THE LOCAL AND
HIS DESIGNEES AND THE DISTRICT DIRECTOR AND HIS DESIGNEES TO DISCUSS
PROBLEMS OF MUTUAL INTEREST.
PROPOSAL A2. ARTICLE 3, USE OF OFFICIAL FACILITIES
A GUN BOX OR SIMILARLY SECURE AREA SHALL BE MADE AVAILABLE TO SEAPORT
INSPECTORS WHILE ON DUTY IN THE DISTRICT OFFICE AND TO DETENTION
OFFICERS WHILE ON DUTY INSIDE THE SERVICE PROCESSING CENTER. THIS AREA
SHALL BE USED EXCLUSIVELY FOR THE STORAGE OF WEAPONS NOT REQUIRED BY THE
OFFICER AT THAT TIME.
PROPOSALS IN CASE NO. 0-NG-216
PROPOSAL B1. IF A DETENTION OFFICER QUALIFIES IN THE SAFE USE OF
FIREARMS, HE MAY, AT HIS DISCRETION, WEAR FIREARMS WHILE ON DUTY OUTSIDE
THE SERVICE PROCESSING CENTER.
PROPOSAL B2. WHEN AN EMPLOYEE BELIEVES THAT A WORK SITUATION,
EQUIPMENT OR ENVIRONMENT POSE AN IMMEDIATE THREAT TO HIS/HER HEALTH
AND/OR SAFETY, THE PROBLEM WILL BE REFERRED TO THE SAFETY OFFICER. THE
EMPLOYEE WILL COMPLY WITH THE SAFETY OFFICER'S DECISION. THE EMPLOYEE
MAY GRIEVE THE DECISION OR TAKE OTHER APPROPRIATE REDRESS.
PROPOSAL B3. THE LOCAL DESIRES TO MEET WITH THE DISTRICT DIRECTOR,
HIMSELF, ON A MONTHLY BASIS. IT IS BELIEVED THAT MANY PROBLEM AREAS
WHICH CAN BE BROUGHT DIRECTLY TO HIS ATTENTION CAN BE RESOLVED PROMPTLY
RATHER THAN THROUGH MEDIARIES INTERPRETING AND PRESENTING THEIR VERSION
OF ISSUES. WE BELIEVE THAT THE WORDING IN THE MASTER AGREEMENT ALLOWS
FOR THE LOCAL PARTIES TO DETERMINE WHO THE PARTICIPATING REPRESENTATIVE
WILL BE.
PROPOSAL B4. DETENTION OFFICERS WILL BE PERMITTED TO BE ARMED WHEN
DETAILED TO DUTIES IN HIGHER CRIME AREAS OR WHEN APPREHENDING ALIENS IN
A HOSTILE ENVIRONMENT. THE SAFETY OFFICER WILL MAKE SUCH
DETERMINATIONS. THE EMPLOYEE MAY GRIEVE THIS DETERMINATION OR TAKE
OTHER APPROPRIATE REDRESS.
--------------- FOOTNOTES$ ---------------
/1/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES AS FOLLOWS:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
(A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
BARGAIN IN GOOD FAITH
SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
GOVERNMENT-WIDE RULE OR
REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
REGULATION ONLY IF THE RULE
OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
THE TERM "MATTERS" AS USED IN SECTION 7117(A)(1) IS EXPLAINED BY
REFERENCE TO THE DEFINITION OF "COLLECTIVE BARGAINING" IN SECTION
7103(A)(12) AND "CONDITIONS OF EMPLOYMENT" IN SECTION 7103(B)(14) OF THE
STATUTE:
SEC. 7103. DEFINITIONS; APPLICATION
* * * *
(12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
OBLIGATION OF THE
REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES IN AN APPROPRIATE
UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
BARGAIN IN A GOOD-FAITH
EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
EMPLOYMENT AFFECTING SUCH
EMPLOYEES . . .
* * * *
(14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
AND MATTERS, WHETHER
ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
CONDITIONS . . .
/2/ SECTION 7106(B)(1) OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
* * * *
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
(1) AT THE ELECTION OF THE AGENCY . . . ON THE TECHNOLOGY . . . OF
PERFORMING WORK . . .
/3/ SECTION 7106(B)(2) AND (3) OF THE STATUTE PROVIDE AS FOLLOWS:
(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; OR
(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY
AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
/4/ COMPARE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND
AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2
FLRA NO. 77(1980) AT 6-7 OF AUTHORITY DECISION.