[ v02 p412 ]
02:0412(56)NG
The decision of the Authority follows:
2 FLRA No. 56 MR. RONALD D. KING, DIRECTOR CONTRACT AND APPEALS DIVISION AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO 1325 MASSACHUSETTS AVENUE, NW. WASHINGTON, D.C. 20005 RE: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1661 AND DEPARTMENT OF JUSTICE, BUREAU OF PRISONS, FEDERAL CORRECTIONAL INSTITUTION, DANBURY, CONNECTICUT, Case No. 0-NG-43 DEAR MR. KING: REFERENCE IS MADE TO THE UNION'S PETITION FOR REVIEW, THE AGENCY'S STATEMENT OF POSITION AND THE UNION'S RESPONSE THERETO, IN THE ABOVE-ENTITLED CASE. THE RELEVANT FACTS OF THIS CASE, AS SET FORTH IN THE RECORD, ARE AS FOLLOWS: THE PETITIONER HEREIN, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1661(THE UNION), IS ONE OF THE LOCAL UNIONS COMPRISING THE AFGE COUNCIL OF PRISONS LOCALS(THE COUNCIL). THE COUNCIL HAS NEGOTIATED WITH THE FEDERAL PRISON SYSTEM, OF WHICH THE DANBURY FEDERAL CORRECTIONAL INSTITUTION(THE ACTIVITY) IS A COMPONENT, A MASTER AGREEMENT COVERING A UNIT OF VIRTUALLY ALL ELIGIBLE EMPLOYEES OF THE FEDERAL PRISON SYSTEM NATION-WIDE. ARTICLE 9 OF THE MASTER AGREEMENT, ENTITLED "NEGOTIATIONS AT THE LOCAL LEVEL" (SET FORTH IN AN APPENDIX TO THIS LETTER INSOFAR AS RELEVANT) PROVIDES FOR THE NEGOTIATION OF LOCAL SUPPLEMENTARY AGREEMENTS AND PRESCRIBES THE MATTERS WHICH ARE APPROPRIATE FOR LOCAL BARGAINING. SECTION G OF ARTICLE 9 PROVIDES A MECHANISM FOR ASSURING THAT SUPPLEMENTAL AGREEMENTS ARE IN COMPLIANCE WITH THE MASTER AGREEMENT AS WELL AS WITH APPLICABLE LAWS AND REGULATIONS, AND SPECIFICALLY PROVIDES THAT "(D)ISPUTES AS TO WHETHER A MATTER IS IMPROPER FOR INCLUSION IN A SUPPLEMENTAL AGREEMENT SHALL BE RESOLVED BY ARBITRATION . . . " IN JANUARY 1979, MANAGEMENT OF THE ACTIVITY SOLICITED COMMENTS FROM THE UNION ON A POLICY STATEMENT CONCERNING THE ADMINISTRATION OF SICK LEAVE WHICH WAS INTENDED FOR PUBLICATION. THE UNION RESPONDED BY IDENTIFYING FOUR PARAGRAPHS OF THE POLICY STATEMENT ON WHICH IT REQUESTED AN OPPORTUNITY TO NEGOTIATE, BUT DID NOT SET FORTH ANY SPECIFIC BARGAINING PROPOSALS. THE ACTIVITY THEREAFTER ADVISED THE UNION THAT, " . . . BASED UPON . . . OUR INTERPRETATION OF THE ISSUES THAT ARE NEGOTIABLE AT THE LOCAL LEVEL, WE DO NOT BELIEVE THE (SICK LEAVE POLICY) ITEMS TO BE NEGOTIABLE." FURTHER EFFORTS BY THE UNION TO NEGOTIATE ON THE IDENTIFIED PARAGRAPHS WERE UNSUCCESSFUL, AND THE ACTIVITY ULTIMATELY IMPLEMENTED THE NEW SICK LEAVE POLICY. THE UNION THEN FILED THE INSTANT NEGOTIABILITY APPEAL. /1/ IN ITS STATEMENT OF POSITION, THE AGENCY CONTENDS, INTER ALIA, THAT THE INSTANT NEGOTIABILITY APPEAL WAS PREMATURELY FILED, IN THAT IT INVOLVES A THRESHOLD QUESTION CONCERNING THE APPLICABILITY AND CONTROLLING EFFECT OF A HIGHER LEVEL AGREEMENT. IN THIS REGARD, THE AGENCY ASSERTS THAT "THE TERMS OF THE MASTER AGREEMENT SUPPORT THE (AGENCY'S) VIEW THAT THE (UNION) WAS PRECLUDED BY CONTRACT FROM SEEKING TO NEGOTIATE THE SUBSTANCE OF THE POLICY STATEMENT CONTAINED (IN THE FOUR IDENTIFIED PARAGRAPHS); AND, THUS, THAT THE UNDERLYING QUESTIONS CONCERNING THE CONTROLLING EFFECT OF (AGENCY REGULATIONS AND PROVISIONS OF THE FEDERAL PERSONNEL MANUAL) NEED NOT NECESSARILY BE REACHED BY THE AUTHORITY IF AN ARBITRATOR WERE TO AGREE WITH THE )AGENCY'S) CONSTRUCTION OF THE MASTER AGREEMENT." THE UNION ESSENTIALLY CONTENDS, ON THE OTHER HAND, THAT THE MASTER AGREEMENT EXPRESSLY CONTEMPLATES LOCAL BARGAINING CONCERNING THE PROVISIONS OF A POLICY STATEMENT WHICH, AS HERE, ARE INTENDED TO IMPLEMENT THE AGREEMENT AT THE LOCAL LEVEL AND COVER MATTERS MORE PRACTICABLY NEGOTIATED AT THE ACTIVITY LEVEL. FOR THE REASONS SET FOR THE BELOW, THE AUTHORITY CONCLUDES, IN AGREEMENT WITH THE AGENCY, THAT THE INSTANT DISPUTE IS NOT PROPERLY BEFORE THE AUTHORITY FOR RESOLUTION. AS INDICATED ABOVE, THE PARTIES ARE ESSENTIALLY IN DISPUTE CONCERNING THE THRESHOLD QUESTION AS TO WHETHER OR NOT THE MASTER AGREEMENT NEGOTIATED AT THE NATIONAL LEVEL AUTHORIZES BARGAINING AT THE LOCAL LEVEL ON THE MATTER OF SICK LEAVE POLICY ADMINISTRATION. IN THE AUTHORITY'S OPINION, SUCH THRESHOLD ISSUE IS NOT APPROPRIATE FOR RESOLUTION UNDER THE PROCEDURES SET FORTH IN SECTION 7117 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE AND PART 2424 OF THE AUTHORITY'S RULES AND REGULATIONS, WHICH PROCEDURES ARE DESIGNED TO RESOLVE WHETHER PARTICULAR UNION PROPOSALS ARE THEMSELVES NONNEGOTIABLE-- I.E., INCONSISTENT WITH LAW, RULE OR REGULATION. /2/ RATHER, TO THE EXTENT THAT THE INSTANT CASE INVOLVES A DISPUTE OVER THE MEANING OF PROVISIONS CONTAINED IN THE MASTER AGREEMENT, THE PROPER FORUM IN WHICH TO RESOLVE THE DISPUTE WOULD BE THAT WHICH THE PARTIES THEMSELVES HAVE ADOPTED FOR SUCH PURPOSE. /3/ IN A NEGOTIABILITY DISPUTE SUCH AS THE INSTANT CASE WHICH INVOLVES ISSUES BOTH AS TO THE INTERPRETATION OF A CONTROLLING AGREEMENT AND AS TO OTHER MATTERS ON WHICH NEGOTIABILITY QUESTIONS MAY AROSE, THERE ARE SOUND POLICY REASONS FOR REQUIRING THE PARTIES FIRST TO RESOLVE THE ISSUE INVOLVING THE INTERPRETATION OF THE CONTROLLING AGREEMENT. FOR EXAMPLE, THE RESOLUTION OF THE ISSUE INVOLVING THE INTERPRETATION OF THE CONTROLLING AGREEMENT COULD RESULT IN A DETERMINATION THAT THE MATTER IN DISPUTE IS INCONSISTENT WITH THE PROVISIONS OF THE CONTROLLING AGREEMENT, THEREBY OBVIATING THE NEED FOR AN AUTHORITY DECISION UNDER SECTION 7117 OF THE STATUTE BY RENDERING MOOT THE NEGOTIABILITY ISSUES AND AVOIDING AN UNWARRANTED PROLIFERATION OF CASES BEFORE THE AUTHORITY. MOREOVER, WERE THE AUTHORITY TO DECIDE THAT A DISPUTED MATTER IS NEGOTIABLE WHILE AN ISSUE INVOLVING THE INTERPRETATION OF THE CONTROLLING AGREEMENT REMAINED TO BE RESOLVED, SUCH AUTHORITY DECISION WOULD LACK FINALITY. /4/ THAT IS, A LATER DETERMINATION UNDER THE PROCEDURES OF THE PARTIES' CONTROLLING AGREEMENT THAT THE MATTER IS INCONSISTENT WITH THE CONTROLLING AGREEMENT WOULD BE DISPOSITIVE OF THE PARTIES' NEGOTIABILITY DISPUTE EVEN THOUGH THE AUTHORITY HAD PREVIOUSLY RULED THAT THE MATTER WAS NEGOTIABLE. CONSEQUENTLY, UNTIL THERE IS A RESOLUTION, UNDER THE PROCEDURES ESTABLISHED BY THE PARTIES, THAT THE CONTROLLING AGREEMENT DOES NOT PRECLUDE BARGAINING AT THE ACTIVITY LEVEL CONCERNING THE MATTER OF SICK LEAVE POLICY ADMINISTRATION, THE AUTHORITY WILL NOT DECIDE ANY RELATED NEGOTIABILITY ISSUES ARISING UNDER THE STATUTE PURSUANT TO ITS EXCLUSIVE RESPONSIBLITY AS SET FORTH IN SECTION 7105(A)(2)(E) OF THE STATUTE TO "RESOLVE ISSUES RELATING TO THE DUTY TO BARGAIN IN GOOD FAITH UNDER SECTION 7117(C) . . . " THAT IS, THE AUTHORITY FINDS THAT THE INSTANT APPEAL HAS BEEN PREMATURELY FILED AND THE CONDITIONS FOR REVIEW OF SUCH ISSUES PURSUANT TO SECTION 7117 OF THE STATUTE AND PART 2424 OF THE AUTHORITY'S RULES AND REGULATIONS HAVE NOT BEEN MET. 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. /5/ RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY CC: A.E. ROSS DOJ APPENDIX ARTICLE 9 - NEGOTIATIONS AT THE LOCAL LEVEL SECTION A. IT IS UNDERSTOOD BY THE PARTIES TO THIS AGREEMENT THAT THIS IS THE MASTER AGREEMENT AND THAT ONLY A LOCAL SUPPLEMENTAL AGREEMENT IN ACCORDANCE WITH THIS ARTICLE MAY BE NEGOTIATED. SECTION B. THE MASTER AGREEMENT IS GOVERNING AND CONTROLLING AT THE LOCAL LEVEL. THE PURPOSE OF A LOCAL SUPPLEMENTAL AGREEMENT SHALL BE TO IMPLEMENT THE MASTER AGREEMENT AND COVER THOSE OTHER APPROPRIATE MATTERS WHICH ARE MORE PRACTICABLY NEGOTIATED AT THE LOCAL LEVEL. IT SHALL NOT: (1) DEFINE MANAGEMENT RIGHTS. (2) RENEGOTIATE THOSE MATTERS NEGOTIATED AT THE NATIONAL LEVEL. (3) INCLUDE MATTERS NEGOTIATED AT THE NATIONAL LEVEL WHETHER OR NOT SUCH MATTERS HAVE BEEN INCORPORATED INTO THIS AGREEMENT. (4) INCORPORATE, DUPLICATE, OR PARAPHRASE ANY PROVISIONS OF A CONTROLLING LAW, REGULATION SIGNED AT A HIGHER LEVEL OR THIS AGREEMENT. (5) CONCERN A MATTER THAT IS NOT WITHIN THE DISCRETION OF THE EMPLOYER LOCALLY. (6) CONCERN A MATTER THAT IS NOT SUBJECT TO MANDATORY NEGOTIATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED. EXCEPTIONS MAY BE GRANTED BY THE EMPLOYER AT THE NATIONAL LEVEL. SECTION C. TO THE EXTENT THAT THEY ARE NOT ALREADY COVERED AND LIMITED BY THIS AGREEMENT AND TO THE EXTENT THAT THEY ARE IN ACCORDANCE WITH E.O. 11491, AS AMENDED, THE FOLLOWING MATTERS MAY BE NEGOTIATED LOCALLY AND INCLUDED IN ANY LOCAL SUPPLEMENTAL AGREEMENT: * * * * (11) POLICY STATEMENTS AND OPERATIONS MEMORANDA WHICH EFFECT LOCAL WORKING CONDITIONS, PERSONNEL POLICIES, AND PRACTICES FOR MEMBERS OF THE UNIT EXCEPT THAT IN THOSE SITUATIONS NECESSITATING IMMEDIATE ISSUANCE, THE EMPLOYER IN ADVANCE OF SUCH ISSUANCE SHALL, IN GOOD FAITH, ENDEAVOR TO CONTACT THE UNION FOR THE PURPOSE OF NOTIFICATION AND CONSULTATION. OTHERWISE, THE UNION WILL HAVE UP TO SEVEN WORKING DAYS FOR REVIEW OF THE PROPOSED ISSUANCE AND SUB- MISSION OF THE UNION'S COMMENTS AND/OR REQUESTING NEGOTIATIONS. IT IS UNDERSTOOD BY THE PARTIES THAT CHANGES IN THE EMPLOYER'S POLICY ISSUANCES WHICH AFFECT WORKING CONDITIONS OR PERSONNEL POLICIES AND PRACTICES FOR EMPLOYEES IN THE UNIT MAY NOT BE MADE THROUGH THE USE OF ORAL OR WRITTEN DIRECTIVES OUTSIDE OF THE EMPLOYER'S FORMAL POLICY ISSUANCE SYSTEM. (12) OTHER WORKING CONDITIONS AND PRACTICES WHICH ARE WITHIN THE DISCRETION OF THE EMPLOYER LOCALLY, AND WHICH HAVE NOT BEEN LIMITED OR EXCLUDED BY PROVISIONS OF THIS AGREEMENT. SECTION D. IN ANY CASE WHERE A PROVISION OF A LOCAL SUPPLEMENTAL AGREEMENT CONFLICTS WITH ANY PROVISION OF THIS AGREEMENT, SUCH PROVISION WILL BE NULL AND VOID. * * * * SECTION G. ONCE AN AGREEMENT HAS BEEN REACHED AT THE LOCAL LEVEL IT SHALL NOT BE FINAL FOR THIRTY (30) DAYS FOLLOWING SIGNATURE OF THE PARTIES. DURING THIS PERIOD THE PROPOSED AGREEMENT SHALL BE FORWARDED TO THE ASSISTANT DIRECTOR FOR CORRECTIONAL PROGRAMS FOR REVIEW TO DETERMINE IF THE PROPOSED AGREEMENT COMPLIES WITH THE PROVISIONS OF THIS AGREEMENT AND APPLICABLE LAWS AND REGULATIONS. IF THE PROPOSED AGREEMENT CONFORMS WITH THE PROVISIONS OF THIS AGREEMENT AND APPLICABLE LAWS AND REGULATIONS, IT SHALL BE APPROVED. DISPUTES AS TO WHETHER A MATTER IS IMPROPER FOR INCLUSION IN A SUPPLEMENTAL AGREEMENT SHALL BE RESOLVED BY ARBITRATION IN ACCORDANCE WITH ARTICLE 30. AT THE END OF THIRTY (30) DAYS, THE PROPOSED AGREEMENT WILL TAKE EFFECT EXCEPT FOR ANY MATTERS IN DISPUTE WHICH WILL NOT BE EFFECTIVE UNTIL RESOLVED BY THE ARBITRATOR. * * * * /1/ SHORTLY THEREAFTER, THE UNION ALSO FILED AN UNFAIR LABOR PRACTICE CHARGE WITH THE AUTHORITY'S BOSTON REGION WHICH ALLEGED THAT THE ACTIVITY'S IMPLEMENTATION OF THE POLICY VIOLATED SECTION 7116(A)(5) AND (8) OF THE STATUTE. THE UNFAIR LABOR PRACTICE PROCEEDING IS CURRENTLY PENDING. /2/ IN THIS REGARD, SEC. 2424.1 OF THE AUTHORITY'S RULES AND REGULATIONS (44 FED. REG. 44765(1979)), WHICH SETS FORTH CONDITIONS GOVERNING REVIEW OF NEGOTIABILITY ISSUES, STATES IN PERTINENT PART AS FOLLOWS: THE AUTHORITY WILL CONSIDER A NEGOTIABILITY ISSUE UNDER THE CONDITIONS PRESCRIBED BY 5 U.S.C. 7117(B) AND (C), NAMELY: IF AN AGENCY INVOLVED IN COLLECTIVE BARGAINING WITH AN EXCLUSIVE REPRESENTATIVE ALLEGES THAT THE DUTY TO BARGAIN IN GOOD FAITH DOES NOT EXTEND TO ANY MATTER PROPOSED TO BE BARGAINED BECAUSE, AS PROPOSED, THE MATTER IS INCONSISTENT WITH LAW, RULE OR REGULATION, THE EXCLUSIVE REPRESENTATIVE MAY APPEAL THE ALLEGATION TO THE AUTHORITY WHEN -- (A) IT DISAGREES WITH THE AGENCY'S ALLEGATION THAT THE MATTER AS PROPOSED TO BE BARGAINED IS INCONSISTENT WITH ANY FEDERAL LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION . . . . /3/ IN THIS CONNECTION, IT IS NOTED THAT SECTION 7114(C)(4) OF THE STATUTE PROVIDES: A LOCAL AGREEMENT SUBJECT TO A NATIONAL OR OTHER CONTROLLING AGREEMENT AT A HIGHER LEVEL SHALL BE APPROVED UNDER THE PROCEDURES OF THE CONTROLLING AGREEMENT OR, IF NONE, UNDER REGULATIONS PRESCRIBED BY THE AGENCY. /4/ IN THIS REGARD, SEC. 2429.10 OF THE AUTHORITY'S RULES AND REGULATIONS (44 FED. REG. 44771) PROVIDES THAT "(T)HE AUTHORITY . . . WILL NOT ISSUE ADVISORY OPINION." /5/ IN SO CONCLUDING, HOWEVER, THE AUTHORITY REITERATES THAT THE UNION, IN REQUESTING NEGOTIATIONS CONCERNING CERTAIN PARAGRAPHS OF THE ACTIVITY'S PROPOSED POLICY STATEMENT ON SICK LEAVE ADMINISTRATION, DID NOT SET FORTH ITS POSITION IN ANY SPECIFIC PROPOSALS. IF MATTERS PROPOSED TO BE NEGOTIATED ARE NOT SPECIFICALLY DELIMITED AND ARTICULATED, IT IS FREQUENTLY DIFFICULT IF NOT IMPOSSIBLE FOR THE AUTHORITY TO RENDER A NEGOTIABILITY DETERMINATION PURSUANT TO SECTION 7117 OF THE STATUTE THAT WOULD BE OF ASSISTANCE BOTH TO THE PARTIES AND THE PUBLIC. IN THIS REGARD, AS PREVIOUSLY NOTED (SUPRA N. 2), SEC. 2424.1 OF THE AUTHORITY'S RULES AND REGULATIONS SPEAKS IN TERMS OF "THE MATTERS AS PROPOSED TO BE BARGAINED."