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52 FLRA No. 139

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL OF PRISON LOCALS

LOCAL 171

(Union)

and

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

FEDERAL CORRECTIONAL INSTITUTION

EL RENO, OKLAHOMA

(Agency)

0-NG-2192

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

May 20, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

I.    Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of three proposals relating to the impact and implementation of the Agency's decision to open two newly-constructed inmate housing dormitories.⁽¹⁾

Proposal 1 would require that the officer's stations located on the dormitories' first and second floors be enclosed offices with windows. Proposal 2 would require the Agency to install safety features on the second floor to prevent inmates, staff, and objects from being thrown from the second floor onto staff or inmates located on the first floor. Proposal 4, contains two distinct requirements: it would require the Agency to (1) assign a designated number of officers to the morning, day and evening watches; and (2) utilize one officer on the day watch for certain tasks.

For the reasons that follow, we conclude that Proposal 1 and Proposal 2 are negotiable at the election of the Agency under section 7106(b)(1) of the Statute. Therefore, pursuant to section 2424.10 of the Authority's Regulations, we dismiss the petition for review as to those proposals. We dismiss the petition with respect to Proposal 4 because the record is insufficient to determine whether it, in its entirety, is outside the duty to bargain under section 7106(a) or negotiable at the election of the Agency under section 7106(b)(1).

II.    The Union Has Standing to File the Petition for Review

A. Positions of the Parties

The Agency contends that the Union--that is, Local 171-- has no standing to file the instant petition. According to the Agency, the American Federation of Government Employees Council of Prison Locals (AFGE Council), not Local 171, is the exclusive representative and "there is nothing in the record in this case that indicates that Local 171 has been delegated authority to act" as an agent for the AFGE Council. Statement at 4; see Agency's Supplemental Brief at 3.

The Union contends that it has been delegated full authority by the AFGE Council to act on its behalf in this matter and that, therefore, it has standing to file the petition for review.

B. Analysis and Conclusions

Subsequent to the Agency's filing of its statement of position, the AFGE Council provided a written declaration that "Local 171 is acting on behalf of the AFGE Council of Prison Locals as the 'exclusive representative' in this matter and has been delegated full authority to do so[; a]ll actions undertaken by Local 171 . . . has [sic] been done with prior consultation and approval of" the AFGE Council. Response, Exhibit 1 at 3. Therefore, the record reflects that the AFGE Council has authorized the Union to act on its behalf with respect to the matters covered by the petition for review. Under these circumstances, we find that the Union has standing to file the petition.

III.    The Authority Has Jurisdiction Under Section 7117(c) of the Statute to Resolve This Negotiability Dispute

A. Positions of the Parties

1. Agency

The Agency contends that the petition should be dismissed for lack of jurisdiction under section 7117(c)⁽²⁾ of the Statute and makes several arguments in support of this contention.

First, in its statement of position, the Agency asserts that the Union's petition should be dismissed under section 2424.5 ⁽³⁾ of the Authority's Regulations because the Union filed both an unfair labor practice charge and a negotiability appeal and initially failed to select under which procedure to proceed. In elaborating on this claim, the Agency maintains that the Union's cure of the deficiency "was well beyond the statutory 15 day filing limit established by section 7117(c)(2)" of the Statute and that the Authority is not "privileged to waive the application of that limitation by means of waiving its own regulations." Agency's Supplemental Brief at 3, 4.

Second, in its supplemental brief, the Agency asserts that the Authority lacks jurisdiction because the petition does not present a negotiability dispute within the meaning of section 7117(c) of the Statute. In this regard, the Agency maintains that the Union does not contend that the proposals are within the duty to bargain, but rather contends only that they are subject to bargaining at the election of the Agency under section 7106(b)(1) of the Statute. Specifically, the Agency contends that section 7117(c) does not authorize the Authority to assert jurisdiction over a petition for review "just to resolve a 'disagreement' between the parties" over whether the fact that an agency has no statutorily imposed duty to bargain over a matter is derived from section 7106(a) or section 7106(b)(1) of the Statute.⁽⁴⁾ Id. at 9.

Third, in its supplemental brief, the Agency argues that the Authority would violate Section 3 of Executive Order 12871 if it asserts jurisdiction over the petition in the instant case because the Authority would be giving the Union a "'right' . . . which the [Executive] Order expressly denies--that is, a right to 'administrative . . . review' . . . of its dispute with the [A]gency as to whether the acknowledged fact that management was under no statutory duty to bargain derived from section 7106(a) or [section] 7106(b)(1)."⁽⁵⁾ Id. at 15 (emphasis supplied by Agency; footnote omitted).

Fourth, in its supplemental brief, the Agency contends that the Authority "lacks statutory jurisdiction" over the petition for review because the proposals do not concern unit employees' conditions of employment. Specifically, the Agency argues that: (1) the principal impact of the proposals is on the Government services that the Attorney General has been instructed to provide to inmates and the public under 18 U.S.C. §§ 4001 and 4042 (the penal statute);⁽⁶⁾ and (2) the proposals concern matters that are "specifically provided for" by the penal statute, within the meaning of section 7103(a)(14)(C) of the Statute. With respect to its first supporting argument, the Agency asserts that the penal statute is like the customs inspection statute at issue in U.S. Department of the Treasury, Customs Service v. FLRA, 43 F.3d 682 (D.C. Cir. 1994) (Customs Service); that is, it is not a "law," as that term is used in section 7103(a)(9)(C)(ii) of the Statute, that was issued "'for the very purpose of affecting the working conditions of employees[.]'" Id. at 18 (quoting Customs Service, 43 F.3d at 689). With respect to its second assertion, the Agency cites to the court's decision in U.S. Immigration and Naturalization Service v. FLRA, 4 F.3d 268 (4th Cir. 1993) (INS).

2. Union

The Union argues that the Agency's first assertion should be rejected because the Union complied with an Authority Order and indicated that it elected to proceed with the negotiability appeal first.

The Union did not respond to the Agency's remaining assertions, which were raised in the Agency's supplemental brief, filed after the Union's supplemental brief. The Union did not seek leave to respond to these assertions.

B. Analysis and Conclusions

1. Section 2424.5 of the Authority's Regulations Does Not Require the Authority to Dismiss the Petition for Review

Section 7117(c)(2)(A) of the Statute provides that an exclusive representative may institute a negotiability appeal before the 15th day after the date on which the agency alleges that the duty to bargain in good faith does not extend to any matter. By its terms, section 7117(c)(2)(A) concerns the action by which a union invokes our authority under section 7105(a)(2)(D) and (E) to resolve negotiability disputes. See National Federation of Federal Employees, Local 122 and U.S. Department of Veterans Affairs, Regional Office, Atlanta, Georgia, 47 FLRA 1118, 1119 (1993). Section 7117(c)(2)(A) does not specify the content of the petition and contains no additional jurisdictional requirements. Accordingly, provided that a petition is timely filed with the Authority, corrections to conform to procedural requirements established by the Authority are permitted within whatever time period is specified by the Authority. See, e.g., American Federation of Government Employees, Local 900 and U.S. Department of the Army, U.S. Army Reserve Personnel Center, St. Louis, Missouri, 46 FLRA 1494, 1497 (1993) (Army Reserve Personnel Center).

The Union's failure to elect whether to proceed first under the negotiability or unfair labor practice procedure, as required by section 2424.5 of the Authority's Regulations, was cured by the Union within the time limits specified by the Authority. Further, the Agency presents no claim that it suffered any prejudice as a result of the delay in the Union's election to proceed with the negotiability procedure first. Therefore, we deny the Agency's request that the petition be dismissed on this ground.

2. Section 7117(c)(1)'s Jurisdictional Requirements for Filing a Petition for Review with the Authority Have Been Complied With ⁽⁷⁾

Under section 7117(c)(1) of the Statute, the exclusive representative may file an appeal with the Authority when an agency alleges that the duty to bargain in good faith does not extend to any matter proposed for bargaining. This agency allegation is the sole express requirement for filing an appeal under section 7117(c)(1) of the Statute. Nothing in section 7117(c)(1) of the Statute conditions a union's ability to file a negotiability petition on the union's theory as to why a proposal is within the duty to bargain. Further, the Agency has not established that this is one of the "'rare and exceptional circumstances[]'" when "[t]he 'strong presumption' that the plain language of the statute expresses [C]ongressional intent is rebutted" by a clearly expressed contrary legislative intent. Ardestani v. Immigration and Naturalization Service, 502 U.S. 129, 135-36 (1991) (citations omitted).

The Agency provided the Union with an allegation that the duty to bargain did not extend to the proposals, and the Union timely appealed that allegation to the Authority. Further, the Agency continues to assert that it has no duty to bargain over the proposals because they directly interfere with its section 7106(a) rights. Consequently, based on the plain wording of section 7117(c)(1), we find that the Union has met the jurisdictional requirements under that section for filing a petition with the Authority and, therefore, reject the Agency's contention to the contrary.

3. The Authority's Assertion of Jurisdiction Over the Union's Petition for Review Does Not Violate Section 3 of the Executive Order

The Union filed its petition for review under the Statute, not under Executive Order 12871. In considering the petition, we are doing nothing more than resolving a negotiability appeal properly brought before us under section 7117(c)(2) of the Statute. Contrary to the Agency's suggestion, we are not addressing whether it is "required to" negotiate over the subjects set forth in section 7106(b)(1) of the Statute as provided under the Executive Order. As acknowledged by the Agency, the Authority did not order the agency in VAMC, Lexington to bargain over the union's proposals; rather, the Authority dismissed the union's petition for review in accordance with section 2424.10(b) of the Authority's Regulations because it found that the proposals were negotiable at the agency's election.

4. The Agency's Contention that the Proposals Do Not Concern Conditions of Employment Does Not Provide a Basis for Concluding that the Authority Lacks Jurisdiction Over the Union's Petition For Review

The Agency describes its contention that the proposals do not concern unit employees' conditions of employment as challenging whether the Authority has subject matter jurisdiction over the Union's petition for review. However, it is clearly within the Authority's jurisdiction to determine whether a proposal affects unit employees' conditions of employment. See, e.g., International Association of Machinist and Aerospace Workers, Franklin Lodge No. 2135 et al. and U.S. Department of the Treasury, Bureau of Engraving and Printing, 50 FLRA 677, 681-85 (1995), petition for review denied, 88 F.3d 1279 (D.C. Cir. 1996) (mem.) and cases cited therein. Neither of the arguments advanced by the Agency in support of this jurisdictional claim has merit.

In characterizing as jurisdictional its arguments concerning the impact of the proposals on the Government services provided pursuant to the penal statute, the Agency seeks to extend the court's ruling in Customs Service beyond the issues it decided. In Customs Service, the court held that the Authority did not have subject matter jurisdiction over a grievance because the grievant claimed a violation of a customs inspection statute, which the court determined was not a law issued "for the very purpose of affecting working conditions of [unit] employees." Customs Service, 43 F.3d at 689. Applying the definition of grievance set forth in section 7103(a)(9)(ii) of the Statute, the court concluded that the claim at issue in Customs Service was not a grievance within the meaning of that section.⁽⁸⁾

The case before us involves a petition for review of negotiability issues, not exceptions to an arbitration award. We are not persuaded that there is any basis in the Statute for extending the rationale of Customs Service to this case by examining the purpose of the penal statute in order to determine if the Authority has jurisdiction to decide the Union's petition. In the context of a negotiability appeal, it is necessary to determine whether a matter proposed to be bargained directly affects "conditions of employment" of bargaining unit employees, as defined in section 7103(a)(14). Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 236-37 (1986). Even if the Agency is correct that the penal statute is not a law that was issued for the very purpose of affecting conditions of employment of unit employees,⁽⁹⁾ this does not, in our view, ipso facto, deprive the Authority of jurisdiction under section 7105(a)(2)(E) of the Statute over a petition for review of proposals aimed at the design of unit employees' work stations, the installation of safety features in the work place, and the number of unit employees placed on particular watches. Further, the Agency's assertion that the principal impact of the proposals is on the services it is required to provide, rather than unit employees' conditions of employment, is a merits argument about whether there is a duty to bargain over the proposals, not an argument about whether the Authority has statutory jurisdiction over the petition.

The Agency's other contention--that the Authority lacks jurisdiction over the petition because the proposals concern matters specifically provided for in the penal statute--similarly confuses the issue of whether the Agency has a duty to bargain over the proposals with the issue of whether the Authority has jurisdiction to decide this duty to bargain question. In particular, we find that the Agency's reliance on INS is misplaced. In INS, the court considered whether the Authority properly determined that matters covered by several collective bargaining provisions were specifically provided for by Federal statute within the meaning of section 7103(a)(14)(C), and, therefore, outside the duty to bargain, or whether they concerned negotiable conditions of employment. The issue of whether the Authority had subject matter jurisdiction over the petition for review at issue in INS was not addressed by the court.

In rejecting the Agency's contentions that the Authority lacks jurisdiction over the proposals because they do not concern unit employees' conditions of employment, we note that the question whether a proposal concerns unit employees' conditions of employment under section 7103(a)(14) more typically arises in the context of an agency's assertion that the proposal is not within the duty to bargain. See, e.g., International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA 665 (1996); American Federation of Government Employees, Local 3824 and U.S. Department of Energy, Western Area Power Administration, Phoenix, Arizona, 52 FLRA 332, 334-35 (1996). However, the Agency's conditions of employment arguments do not properly present such a duty to bargain claim here because they are untimely: (1) the Agency raised these assertions for the first time in its supplemental brief; (2) they are not responsive to the Authority's request that the parties file supplemental submissions addressing the applicability of VAMC, Lexington to the instant case; and (3) the Agency did not request, nor did the Authority grant, permission to address this issue in its supplemental submission.⁽¹⁰⁾ See 5 C.F.R. § 2424.8; see also Bureau of Prisons, 47 FLRA at 837-38; Army Reserve Personnel Center, St. Louis, Missouri, 46 FLRA at 1497.

For the same reason, the Agency's claim, raised for the first time in its supplemental brief, that the Authority "is constrained to read section 7117(c) and the term 'conditions of employment' as precluding negotiation of the proposals at issue[]" to avoid constitutional questions over the separation of powers between the Executive and Legislative Branches, is unsolicited and not properly before us for resolution. Agency's Supplemental Brief at 40 (emphasis omitted).

IV.    The Authority's Construction of Section 7106(b)(1), as Set Forth in VAMC, Lexington, Is Proper

A. Positions of the Parties

1. Agency

The Agency contends that the Authority's construction of section 7106, set forth in VAMC, Lexington, is incorrect and should not be applied in the instant case. According to the Agency, in VAMC, Lexington the Authority erroneously relied on the court's decision in Association of Civilian Technicians, Montana Air Chapter No. 29 v. FLRA, 22 F.3d 1150 (D.C. Cir. 1994) (Montana ACT); violated applicable rules of statutory construction; and erroneously construed applicable legislative history. In particular, the Agency asserts that the court's decision in Montana ACT is limited to agency head review cases arising under section 7114(c) of the Statute and is inconsistent with earlier decisions of the same court.⁽¹¹⁾

2. Union

In its supplemental brief, the Union does not expressly address VAMC, Lexington's applicability to the proposals at issue in this case. However, the Union renews its claim, which was made in its petition, that Executive Order 12871 compels the Agency to bargain over its proposals. As noted above, because the Agency's specific claims were made for the first time in its supplemental brief, the Union has not addressed these claims.

B. Analysis and Conclusions

We reject the Agency's contention that, in VAMC, Lexington, the Authority erroneously construed section 7106(b)(1) of the Statute.

In VAMC, Lexington, the Authority agreed with the Montana ACT court's interpretation of section 7106(b)(1) as "indisputably an exception to [section] 7106(a)." Montana ACT, 22 F.3d at 1155 (emphasis in original). The Agency's assertions here do not persuade us that the Authority erred in agreeing with the court's judgment in Montana ACT for the reasons fully explained in VAMC, Lexington. In particular, the court's statutory analysis in Montana ACT was not dependent on, or limited to, the fact that the case arose in the context of an agency head's disapproval of a collective bargaining agreement.

We also reject the Agency's contention that Montana ACT is inconsistent with AFGE, Local 1923, AFGE, Local 2782, and AAFES. In Montana ACT, the court quoted AFGE, Local 1923 (22 F.3d at 1154-55) and cited AFGE, Local 2782 (id. at 1155) (which, in turn, cited AAFES (702 F.2d at 1186)) in its discussion of the relationship between section 7106(a) and section 7106(b). As such, it is apparent that the court was well aware of these prior decisions when it issued Montana ACT. Had the court deemed it necessary to do so, we assume it would have addressed and reconciled any inconsistency with prior cases in reaching its determination that section 7106(b)(1) is an exception to section 7106(a). Nothing in the Agency's argument here demonstrates that Montana ACT is inconsistent with the earlier cases decided by the same court.

Further, the Agency has not established that the Authority misapplied relevant principles of statutory construction or pertinent legislative history in VAMC, Lexington. In VAMC, Lexington the Authority identified (51 FLRA at 389 n.6) the principle of statutory construction that it was applying and discussed the relevant portions of the legislative history. VAMC, Lexington, 51 FLRA at 391.

With respect to the Union's assertion that Executive Order 12871 compels the Agency to bargain over its proposals, we note that in VAMC, Lexington, the Authority construed a similar assertion by the union in that case as a claim that the agency involved had made an election to negotiate, within the meaning of section 7106(b)(1). VAMC, Lexington, 51 FLRA at 394 n.12. We similarly construe the Union's assertion here as a claim that the Agency has made an election to negotiate, within the meaning of section 7106(b)(1) of the Statute. Where the Authority finds that a proposal is negotiable at the election of an agency under section 7106(b)(1), the Authority dismisses the petition for review and does not address claims that there has been an election to bargain. International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA 830, 837 (1996) (citing VAMC, Lexington, 51 FLRA at 394).

V.    The Union's Appropriate Arrangement Contentions and Its Claim That the Parties' Agreement Requires the Agency to Negotiate Over the Proposals Are Not Properly Presented

A. Positions of the Parties

1. Union

In its supplemental brief, the Union expressly contends that its proposals are within the duty to bargain on two grounds. First, the Union asserts that Proposals 1 and 2 are intended as appropriate arrangements within the meaning of section 7106(b)(3) of the Statute.⁽¹²⁾ Second, the Union asserts that even if its proposals are determined not to be appropriate arrangements, the Agency is nonetheless required to negotiate over the proposals because Article 27, Section a(2) of the agreement provides that the Agency "agrees to furnish to employees, places and conditions of employment that are free from recognized hazards that are causing or are likely to cause death or serious physical harm in accordance with all applicable Federal laws, standards, codes, regulations, and Executive Orders." Union's Supplemental Brief at 3.

These assertions were not made by the Union in its petition for review. However, in an exhibit to the Union's response to the Agency's statement of position, the Union Council President states that the cooperative efforts of the Union at the Local and National levels "are designed to achieve a work environment for our constituents which are [sic] free from recognized safety hazards[; t]his can be accomplished through an appropriate arrangement which does not excessively interfere with management's right to determine its internal security practices." Response, Exhibit 1 at 3.

2. Agency

The Agency asserts that the Union should not be permitted to raise for the first time in its supplemental brief the contention that the proposals are appropriate arrangements. The Agency argues that the Union's contentions are not responsive to the Authority's request that the parties file supplemental briefs addressing the applicability of VAMC, Lexington to the instant case. The Agency notes that in its statement of position it specifically argued that the Union did not assert that its proposals were intended as appropriate arrangements, and the Union did not contradict the Agency's claim in its response to the Agency's statement.

The Agency does not address the Union's claim that the parties' agreement requires it to negotiate over the proposals.

B. Analysis and Conclusions

The Union did not request, and the Authority did not grant, permission for the Union to address in its supplemental brief matters that went beyond the applicability of VAMC, Lexington to the instant case. Consequently, the Union's assertions in its supplemental submission that its proposals were intended as appropriate arrangements were unsolicited and, if not raised previously, are not properly before the Authority for resolution. See section 2424.8 of the Authority's Regulations.

As noted above, the Union did not assert in its petition that the proposals were intended as appropriate arrangements. The Union's response to the Agency's statement of position addressed other arguments raised therein, but did not expressly dispute the Agency's assertion that the Union had not claimed that the proposals constituted appropriate arrangements. Rather, the Union simply attached to its response a statement from the Union Council President regarding the use of "an appropriate arrangement" to achieve a work environment "free from recognized safety hazards." Response, Exhibit 1 at 3. Unless this statement is viewed as the Union's claim that its proposals were intended as appropriate arrangements, the appropriate arrangement argument is untimely and not properly before us.

However, even assuming, without deciding, that this statement by the Union Council President is sufficient to raise a claim that the proposals are within the duty to bargain because they constitute appropriate arrangements within the meaning of section 7106(b)(3) of the Statute,⁽¹³⁾ the Union's response did not set forth any arguments in support of such a claim. Therefore, we have no basis on which to conclude that the proposals are within the duty to bargain. In this regard, it is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. E.g., National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982) (NFFE, Local 1167). Accordingly, we will not address this assertion further.⁽¹⁴⁾

With respect to the Union's contention that the parties' collective bargaining agreement requires the Agency to negotiate over the proposals, this assertion clearly was raised for the first time by the Union in its supplemental brief. As the Union did not request permission to address this matter in its supplemental brief, and it was not solicited by the Authority, it is not properly before us for resolution and we will not address it further.

VI.    Proposal 1

We propose for the safety of the employees working at FCI El Reno that the officer's station on both the first and second floors be enclosed as an office with suitable windows in the new units.

A. Positions of the Parties

1. Union

According to the Union, Proposal 1 means that "the officer's stations on each level of the new units will be enclosed with normal construction methods to become an office." Petition at 4. The Union claims that the proposal is intended to "further reduce the [officer's] vulnerability to attack from above by providing walls which would deflect any projectiles which were thrown or launched at the officer." Response at 6. The Union asserts that by providing for windows in the office, "if [the windows were] designed and installed properly, [they] would not reduce the spirit of openness [desired by the Agency] nor prohibit the officer from casually monitoring the operation of the unit from the office when required to complete the normal tasks at the desk." Id.

The Union contends that the proposal concerns the technology and means of performing work within the meaning of section 7106(b)(1) of the Statute.

2. Agency

The Agency claims that design of the two newly-constructed inmate housing dormitories, which the Union is proposing to alter, is intended to: (1) improve security; (2) increase officers' awareness of what is going on around them; and (3) enhance officers' ability to detect inmate misconduct. For those reasons, the Agency contends that the proposal concerns matters pertaining to its internal security practices under section 7106(a). However, the Agency concedes that "but for the authority reserved to the [Agency] by 18 U.S.C. § 4042, . . . [Proposal 1 comes] within the scope of section 7106(b)(1) as well as section 7106(a)." Agency's Supplemental Brief at 35-36, 39.

B. Analysis and Conclusions

1. Meaning of Proposal

In interpreting a disputed proposal, the Authority first looks to its plain wording and any union statement of intent. If the union's explanation of the proposal is consistent with the proposal's plain wording, the Authority adopts that explanation for the purposes of construing what the proposal means and, based on that meaning, deciding whether the proposal is within the duty to bargain. E.g., American Federation of Government Employees, Local 1900 and U.S. Department of the Army, Headquarters, Forces Command, Fort McPherson, Georgia, 51 FLRA 133, 138-39 (1995).

Proposal 1 requires that the officer's stations located on the first and second floors of the dormitories be designed as an enclosed office with windows. As such, it is apparent that Proposal 1 concerns matters that impose a single requirement on the Agency: to make the first and second floor officer's stations enclosed offices with windows.

2. The Proposal Is Negotiable at the Election of the Agency

In VAMC, Lexington the Authority held that "matters encompassed by the terms of section 7106(b)(1) constitute exceptions to the rights set forth in section 7106(a)[;] a determination that a proposal is negotiable at the election of the agency under section 7106(b)(1) obviates the need to also analyze the proposal under section 7106(a)." VAMC, Lexington, 51 FLRA at 393. The Authority stated that:

where . . . parties disagree about which of these sections govern the negotiability of a particular proposal, the Authority will determine initially whether the proposal concerns matters within the subjects set forth in section 7106(b)(1). If it does, [the Authority] will not address contentions that those matters also affect the exercise of management's authorities under section 7106(a).

Id. Conversely, the Authority held that if "a proposal does not concern matters within the subjects set forth in section 7106(b)(1), we will then proceed to analyze it under the appropriate subsection of section 7106(a)." Id.

In determining whether a proposal relates to a matter within the subjects set forth in section 7106(b)(1) of the Statute, the Authority analyzes whether the proposal falls within one of two categories encompassed in that section: (1) the first category relates to the numbers, types or grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty; and (2) the second category relates to the technology, methods, and means of performing work. VAMC, Lexington, 51 FLRA at 394 & n.11. As noted above, if a matter is found within the subjects set forth in section 7106(b)(1), the Authority will not address contentions that those matters also affect the exercise of management's authorities under section 7106(a) of the Statute. Id. at 393. Further, if a proposal is found negotiable at the election of the agency under section 7106(b)(1), the Authority will dismiss the petition for review as to that proposal. Id. at 394 (citing section 2424.10(b) of the Authority's Regulations).

The Agency concedes that, but for the authority reserved to it by the penal statute, the proposal comes within the scope of section 7106(b)(1). See Agency's Supplemental Brief at 35-36, 39. As we found in section III.B.4. above, the Agency's assertion that the proposals do not concern employees' conditions of employment because of the penal statute is not properly before us.⁽¹⁵⁾ Consequently, we conclude that Proposal 1 is negotiable at the election of the Agency under section 7106(b)(1) of the Statute. Therefore, it is unnecessary to address the Agency's contentions as to section 7106(a). See VAMC, Lexington, 51 FLRA at 395.

VII.    Proposal 2

To provide for the safety of staff and inmates we propose that management provide safety features that will keep inmates and staff from being thrown off the second[-]floor level down to the first floor. We also propose that safety features should be established to keep articles from being thrown down on staff or inmates who are on the first level.

A. Positions of the Parties

1. Union

The Union states that Proposal 2 means that

management will develop and install appropriate safety devices that would prevent people from being thrown off the second floor balcony to the lower level. These safety features will also be of a design which would prevent objects from being thrown or dropped from the second level balcony onto people on the lower level.

Petition at 4. The Union contends that the proposal concerns the technology and means of performing work within the meaning of section 7106(b)(1) of the Statute.

2. Agency

The Agency first claims that Proposal 2 is not "specific and delimited" and consequently, the Authority "is obliged to dismiss the petition as it concerns that proposal." Agency's Supplemental Brief at 27-28 n.8. The Agency asserts that the proposal is "ill defined" and notes that the Union explained that the proposal was intended to give management "'different ideas'" and the "'flexibility and latitude to develop and install whatever device it wanted . . . .'" Id. at 27 n.8 (quoting Response at 9-10; emphasis supplied by Agency omitted).

The Agency also claims that its open bay correctional two-tier floor plan design, which the Union is proposing to alter under Proposal 2, "not only enhances the security of the inmates as well as the correctional staff and the public, but increases the odds that the inmates incarcerated therein will be rehabilitated." Statement at 26. For those reasons, the Agency contends that the proposal concerns matters pertaining to its internal security practices under section 7106(a)(1). However, the Agency concedes that "but for the authority reserved to the [Agency] by 18 U.S.C. § 4042, . . . [Proposal 2 comes] within the scope of section 7106(b)(1) as well as section 7106(a)." Agency's Supplemental Brief at 35-36, 39.

B. Analysis and Conclusions

1. Meaning of the Proposal

The plain wording of Proposal 2 requires the Agency to provide unspecified safety features to prevent inmates and employees, as well as physical objects, from being thrown from the dormitories' second-floor level down onto the first-floor level. The Union explains that the proposal is intended to require the Agency to "develop and install appropriate safety devices" to prevent this from happening. Petition at 4. The Union's explanation is consistent with the proposal's wording and, therefore, we will use that explanation in construing whether the proposal is within the duty to bargain. E.g., International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA 839, 842 (1996) (Corps of Engineers). As such, it is apparent that Proposal 2 requires the Agency to develop and install appropriate safety features in the new dormitories to prevent objects and people from being thrown from the second floor onto the first floor.

Consistent with the foregoing, we find that the wording of Proposal 2, its intended purpose as explained by the Union, and the record as a whole provide us with sufficient information on which to base a negotiability determination. See, e.g., American Federation of State, County and Municipal Employees, Local 3097 and U.S. Department of Justice, Justice Management Division, 42 FLRA 412, 471-473 (1991). Cf. Association of Civilian Technicians, Alabama ACT and State of Alabama National Guard, 2 FLRA 314 (1979) (Authority held proposal was not sufficiently specific in form and content to permit a determination on its negotiability). Consequently, we reject the Agency's claim that the petition as to Proposal 2 should be dismissed because the proposal is not "specific and delimited." Agency's Supplemental Brief at 27 n.8.

2. The Proposal Is Negotiable at the Election of the Agency

The Agency concedes that, but for the authority reserved to it by the penal statute, the proposal comes within the scope of section 7106(b)(1). Id. at 35-36, 39. As we found in section III.B.4. above, the Agency's assertion that the proposals do not concern employees' conditions of employment because of the penal statute is not properly before us. Consequently, we conclude that Proposal 2 is negotiable at the election of the Agency under section 7106(b)(1) of the Statute. Therefore, it is unnecessary to address the Agency's contentions as to section 7106(a).

VIII.    Proposal 4

We propose 3 officers on [d]ay watch, 2 officers on evening watch, 2 officers on morning watch, with one officer on day watch to be used for counting, lunch reliefs, etc[.] This [is] to ensure the safety of those working these dorms are [sic] not compromised.

A. Positions of the Parties

1. Union

The Union contends that Proposal 4 concerns the numbers, types, and grades of employees or positions assigned to an organizational subdivision, work project, or tour of duty within the meaning of section 7106(b)(1) of the Statute.

The Union asserts that Proposal 4 is intended to address the Agency's plan to "reduc[e] the number of staff required to supervise the units [in the new dormitories] compared to the number [of staff] required in the old dormitories[.]" Response at 11. According to the Union, the proposal means that the designated number of officers would be assigned to work each new unit on each specified watch and is intended, for safety reasons, to "maintain the current inmate/officer ratio[.]" Petition, Attachment 1 at 3.

With respect to the portion of the proposal that addresses the duties that will be carried out by "one officer," the Union states that:

The third officer on day watch would be used occasionally to help perform other tasks like counting, providing lunch relief, and other necessary tasks, but the post would not b[e] systematically eliminated or used as a pull post [⁽¹⁶⁾] when other posts are vacant.

Petition at 4. However, the Union states that it does not intend the proposal to restrict "the amount of work assigned to any of the staff assigned to these units." Response at 11.

2. Agency

The Agency asserts that Proposal 4 affects management's rights to determine its internal security practices, direct employees, and assign work under section 7106(a)(1) and (2) of the Statute. The Agency concedes that, but for the authority it asserts is reserved to it by the penal statute, the proposal can "be said to concern . . . the 'number of employees assigned to a . . . tour of duty' within the meaning of section 7106(b)(1)." Agency's Supplemental Brief at 35-36.

The Agency further claims that, even if VAMC, Lexington "were not void, ab initio," it would nonetheless not apply to the instant proposal insofar as the proposal "limit[s] management's ability to 'direct' and 'assign work' to the third officer on the day shift within the meaning of section 7106(a)(2)(A) and (B)." Id. at 39-40. In making this claim, the Agency relies both on the Union's assertion that the proposal would preclude the Agency from using the officer's position as a pull post, and on the Union's statement that the intent of the proposal is "to limit the duties" of the officer to "'occasionally . . . help perform other tasks like counting, providing lunch relief, and other necessary tasks.'" Statement at 28 (emphasis in original). According to the Agency, the proposal "would preclude management from routinely assigning the third officer the full range of duties assigned to the other two officers . . . ." Id.

B. Analysis and Conclusions

1. Meaning of the Proposal

The plain wording of the proposal states two distinguishable requirements: the number of officers to be assigned to each of three watches and the specific duties to be assigned to one of the officers on the day watch.

With respect to the first requirement, Proposal 4 requires that three officers be assigned to the day watch, and that two officers be assigned to both the evening and the morning watches. The Union's explanation makes clear that the "watches" at issue are shifts to be worked in the dormitory units. This explanation is not inconsistent with the proposal's wording, and, therefore, we adopt it for purposes of determining whether the proposal is within the duty to bargain. E.g., Corps of Engineers, 52 FLRA at 842.

With respect to the second requirement--that "one officer on day watch . . . be used for counting, lunch reliefs, etc[.]"--the Union explains that its intent is to "improv[e] the safety and security for all staff and inmates." Response at 11-12. According to the Union, "important posts" are vacated by management "all too often." Id. at 12. The Union explains that, although it does not intend to restrict the "amount" of work to be assigned to the officer, the officer's position could not routinely be vacated by reassigning the officer to cover another post. Id. at 11. Similarly, consistent with its assertion that it is necessary to "maintain the basic and vital function of inmate supervision[,]" id. at 12, the Union maintains that the officer's position could be used for such "other" tasks as counting and providing lunch relief, but could be so used only "occasionally." Petition at 4. This explanation of the meaning of the terms "used for counting, lunch reliefs, etc." is not inconsistent with the wording of the proposal. Accordingly, we adopt it for the purposes of this decision.

As quoted above, a statement by the Union suggests that the "one officer" to whom the second requirement applies refers to the "third officer" on the day watch. See id. Other statements by the Union, however, indicate that the limitation on "pulling" intended by this requirement is desired for "any" and "all" of the staff. Response at 11. Given the Union's expressed view that it is "important not to routinely and systematically vacate important posts," id. at 12 (emphasis added), it would be illogical to conclude that the Union intends to restrict the Agency's ability to reassign day watch officers only when there are three officers assigned to the watch. Indeed, it would appear to be even more critical to maintain staffing on the day watch if fewer than three officers were assigned to it. In view of the ambiguities in the various statements explaining this aspect of the proposal, and, consistent with the plain wording of the proposal--which addresses assignments only in regard to "one officer on day watch"--we construe the proposal as limiting work assignments with respect to any one of the day watch officers.

In sum, for purposes of this decision, we construe the second requirement as establishing that one of the officers on the day watch will only occasionally be assigned either "other duties," such as those specified in the proposal, or to another post.

2. The Record Is Insufficient to Determine Whether Proposal 4, in Its Entirety, Is Outside the Duty to Bargain under Section 7106(a) or Negotiable at the Election of the Agency under Section 7106(b)(1)

The parties disagree whether this proposal should be analyzed under section 7106(a) or 7106(b)(1) of the Statute. The Union contends, and the Agency concedes, that the first requirement established by the proposal--that a specified number of officers be assigned to specified watches--is encompassed by section 7106(b)(1) of the Statute.⁽¹⁷⁾ This conclusion comports with Authority precedent construing section 7106(b)(1). E.g., American Federation of Government Employees, Local 1345 and U.S. Department of the Army, Headquarters, Fort Carson and Headquarters, 4th Infantry Division, Fort Carson, Colorado, 48 FLRA 168, 190 (1993); 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, 587 (1981), aff'd as to other matters, NFFE, Local 1167.

With respect to the second requirement--limiting the work that may be assigned to one of the officers on the day watch--the Agency contends, as relevant here, that its right to assign work under section 7106(a)(2)(B) of the Statute is impermissibly affected. This contention also is consistent with Authority precedent. E.g., American Federation of Government Employees, Local 3392 and U.S. Government Printing Office, Public Documents Distribution Center, Pueblo, Colorado, 52 FLRA 141, 143 (1996); International Federation of Professional and Technical Engineers and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 49 FLRA 225, 266 (1994) (Proposal 7, Section 7.3). The Union asserts that the proposal's second requirement is not intended to "restrict" the amount of work assigned. Response at 11.

In circumstances where, as here, proposals have two or more distinct requirements and the parties make conflicting claims as to whether the proposal is outside the duty to bargain under section 7106(a) of the Statute or is negotiable at the agency's election under section 7106(b)(1), the Authority will not separately analyze the requirements where severance is not requested or practicable. American Federation of Government Employees, Local 1336 and Social Security Administration, Mid-America Program Service Center, 52 FLRA 794, 800 (1996) (SSA, Mid-America Program Service Center) (Member Armendariz, concurring). The Union has not requested us to sever Proposal 4 in deciding this negotiability appeal. However, unlike the proposals at issue in SSA, Mid-America Program Service Center, we are unable to conclude on the basis of the record presented that severance "is not practicable." 52 FLRA at 797. See, e.g., International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA 813, 819-20 (1996). In this regard, a requirement concerning duties to be assigned to an officer on the day watch is capable of standing on its own so long as there is a day watch to which at least one officer is assigned. Severance, although not requested, would be possible. A different analysis may be warranted, however, to the extent that the limitation on duties is intended to apply only in the context of negotiations that extend also to the number of officers on a watch. We note that the Union has not indicated whether it has any interest in a proposal that excludes one but not the other of these requirements.

Given this uncertainty about the relationship between the two requirements in Proposal 4, and the absence of arguments by the parties addressing this matter, we are unable to determine whether the two requirements in Proposal 4 are inseparable, such that "ruling on the negotiability of each requirement, standing alone, would entail substantive revision of the proposals, which is not the Authority's role." SSA, Mid-America Program Service Center, 52 FLRA at 798. Accordingly, we do not apply the SSA, Mid-America Program Service Center framework to Proposal 4.⁽¹⁸⁾

In sum, the record before us does not provide a sufficient basis on which to determine whether Proposal 4, in its entirety, is outside the duty to bargain under section 7106(a) or negotiable at the election of the Agency under section 7106(b)(1). Accordingly, we dismiss the petition for review as to Proposal 4.

IX.    Order

Proposals 1 and 2 are negotiable at the election of the Agency under section 7106(b)(1) of the Statute. Accordingly, under section 2424.10(b) of the Authority's Regulations, the petition for review as to these proposals is dismissed. The petition for review as to Proposal 4 is also dismissed.

 

APPENDIX

Title 18 of the United States Code, entitled "Crimes and Procedure," provides at section 4001 and section 4042 as follows:

§ 4001. Limitation on detention; control of prisons

(a) No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.

(b)(1) The control and management of Federal penal and correctional institutions, except military or naval institutions, shall be vested in the Attorney General, who shall promulgate rules for the government thereof, and appoint all necessary officers and employees in accordance with the civil-service laws, the Classification Act, as amended, and the applicable regulations.

(2) The Attorney General may establish and conduct industries, farms, and other activities and classify the inmates; and provide for their proper government, discipline, treatment, care, rehabilitation, and reformation.

. . . .

§ 4042. Duties of Bureau of Prisons

The Bureau of Prisons, under the direction of the Attorney General, shall--

(1) have charge of the management and regulation of all Federal penal and correctional institutions;

(2) provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States, or held as witnesses or otherwise;

(3) provide for the protection, instruction, and discipline of all persons charged with or convicted of offenses against the United States;

(4) Provide technical assistance to State and local governments in the improvement of their correctional systems.

This section shall not apply to military or naval penal or correctional institutions or the persons confined therein.

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FOOTNOTES:  

1. Pursuant to an Authority directive, the parties filed supplemental briefs addressing the applicability of National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995) (VAMC, Lexington) to the proposals in this case. The Agency subsequently withdrew arguments set forth at pages 45-47 of its supplemental brief. Accordingly, those arguments have not been considered.

2. Section 7117(c)(1) of the Statute provides, as relevant here, that "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, the exclusive representative may appeal the allegation to the Authority in accordance with the provisions of this subsection."

3. Section 2424.5 provides, in relevant part, that where a labor organization files an unfair labor practice charge that involves a negotiability issue and also files a petition for review of the same negotiability issue, the labor organization must select under which procedure to proceed and that, upon selection of one procedure, further action under the other procedure will ordinarily be suspended.

4. The Agency acknowledges that in responding to the Authority's Federal Register notice (60 Fed. Reg. 14285 (1995)) soliciting comments on questions raised in Referral of a Major Policy Issue, Case No. O-PS-33, Order Denying Request for A General Ruling, 51 FLRA 409, 411-12 (1995), the Agency asserted that it would be "preferable" for the Authority to address in an actual case, rather than in the context of a general ruling, the relationship between sections 7106(a) and 7106(b)(1) and the Authority's approach for resolving disputes over whether a proposal is governed by section 7106(a) or section 7106(b)(1). Agency's Supplemental Brief at 11 n.3. The Agency also acknowledges that in its response to the Federal Register notice it stated that the case now before us "represented an excellent vehicle for that purpose." Id. However, the Agency asserts that it made those statements before examining the jurisdictional question that it is now raising.

5. Executive Order 12871, 58 Fed. Reg. 52,201 (the Executive Order) is entitled "Labor-Management Partnerships." Section 3 provides that the Executive Order "does not[] create any right to administrative or judicial review, or any other right substantive or procedural, enforceable by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person."

6. Among other things, 18 U.S.C. §§ 4001 and 4042 concern the control and management of Federal penal institutions. The Agency specifically references the first part of section 4001(b)(1), which provides that the control and management of Federal and correctional facilities are vested in the Attorney General. The text of 18 U.S.C. §§ 4001 and 4042 is set forth in the Appendix to this decision.

7. The Agency's three jurisdictional arguments asserted for the first time in its supplemental submission are addressed here and in sections III.B.3. and 4., because such arguments may be raised at any stage of the Authority's proceedings. See generally Long Beach Naval Shipyard, Long Beach, California, and Long Beach Naval Station, Long Beach, California, 25 FLRA 1002, n.* (1987). However, as discussed, infra, in sections III.B.4. and V, a party's non-jurisdictional arguments raised for the first time in a supplemental brief generally are considered untimely and will not be addressed, unless they are responsive to a request by the Authority or unless, upon a party's written request, the Authority in its discretion grants permission to file the submission. See American Federation of Government Employees, Council of Prison Locals and U.S. Department of Justice, Bureau of Prisons, 47 FLRA 836, 837 (1993) (Bureau of Prisons) (citing section 2424.8 of the Authority's Regulations).

8. We note that in response to a petition for review of a similar decision, the United States Court of Appeals for the Ninth Circuit declined to assert jurisdiction, stating that it was "not persuaded" by the D.C. Circuit's opinion in Customs Service. National Treasury Employees Union v. FLRA, No. 95-70714, 1997 WL 200013, at *3-*4 (9th Cir. Apr. 25, 1997) (per curiam).

9. According to the Agency, the penal statute governs the control and management of Federal penal institutions and the Government services the Attorney General has been instructed to provide, through the Agency, to inmates and the public.

10. It appears that the Agency clearly understands the infirmity of raising its conditions of employment arguments for the first time in its 65-page supplemental submission, because it asserts that the Union's arguments raised at the same point in the litigation are untimely. See section V.A.2., infra. Given the Agency's vigorous arguments that the Union's claims are untimely and therefore must be disregarded, it is not surprising that the Agency attempts to cast as "jurisdictional" several of its belated arguments--each of which is considered above and found to have no merit. In so doing, the Agency has caused the expenditure of considerable public resources to forestall review of the Union's petition on its merits. Recognizing this compels us to question whether, in pursuing this litigation, the Agency gave due consideration to the public interest in conducting Government operations in an effective and efficient matter. Cf. Executive Order 12988, 61 Fed. Reg. 4729, Section 1(f)(5) (directing Federal litigation counsel to "employ efficient case management techniques" and "make reasonable efforts to expedite civil litigation" by, inter alia, ensuring "that unmeritorious threshold defenses and jurisdictional arguments, resulting in unnecessary delay, are not raised").

11. Specifically, the Agency asserts that the court's decision in Montana ACT is inconsistent with the court's earlier decisions in American Federation of Government Employees, Local 1923 v. FLRA, 819 F.2d 306, 308 (D.C. Cir. 1987) (AFGE, Local 1923); American Federation of Government Employees, Local 2782 v. FLRA, 702 F.2d 1183, 1186-87 (D.C. Cir. 1983) (AFGE, Local 2782); and Department of Defense, Army-Air Force Exchange Service v. FLRA, 659 F.2d 1140, 1159-60 (D.C. Cir. 1981) (AAFES), cert. denied, 455 U.S. 945 (1982).

12. The Union does not expressly contend that Proposal 4 is intended as an appropriate arrangement.

13. The fact that the statement was made in a declaration included as an exhibit to the Union's response, rather than in the response itself, has no bearing on whether it is sufficient to constitute a claim that the proposals constitute appropriate arrangements under section 7106(b)(3) of the Statute.

14. As such, we leave for an appropriate case the issue of how to analyze the negotiability of a proposal that is asserted to constitute both a section 7106(b)(1) matter and a section 7106(b)(3) appropriate arrangement.

15. We note that, even if a matter proposed for bargaining does not pertain to the conditions of employment of unit employees, an agency may nevertheless elect to bargain over the matter provided the matter is otherwise consistent with law. See American Federation of Government Employees, Local 3302 and U.S. Department of Health and Human Services, Social Security Administration, 52 FLRA 677, 680-83 (1996).

16. Our review of the submissions by both parties leads us to understand that a "pull post" means that an employee assigned to a particular watch position may be "pulled" from that post to cover, on a temporary basis, other posts that become vacant due to staff shortages. Response at 12-13; Statement at 29. Our review of the submissions indicates that, in addition to absences, staff shortages may be caused by special circumstances, such as when officers attend refresher training, are temporarily assigned to other jobs, or attend competitions. See id.

17. In this regard, the Agency concedes that, but for the authority reserved to it by the penal statute, the proposal's requirement that a designated number of officers be assigned to specified watches comes within the scope of section 7106(b)(1). See Agency's Supplemental Brief at 35-36, 39-40. As we found in section III.B.4. above, the Agency's assertion regarding the penal statute is not properly before us.

18. Application of this framework would require determining whether either of the two requirements is dominant. SSA, Mid-America Program Service Center, 52 FLRA at 800. Making this determination on the basis of the record before us also presents difficulties. See id. at 803-04 n.8 ("[I]t is important that the parties provide us with a sufficient record on which to determine what the requirements of a proposal are and how those requirements interrelate."). In this regard, we note that both requirements--that is, the requirement concerning the number of officers assigned to each shift, and the requirement concerning the work that may be assigned to one of the officers on the day shift--are directed to the Union's expressed concern with maintaining a specific "inmate/officer ratio." Petition, Attachment 1.

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