American Federation of Government Employees, Local 1917, AFL-CIO (Union) and United States Department of Justice, Immigration and Naturalization Service (Agency) 



[ v04 p182 ]
04:0182(29)NG
The decision of the Authority follows:


 4 FLRA No. 29
 
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 1917
 Union
 
 and
 
 UNITED STATES DEPARTMENT OF JUSTICE,
 IMMIGRATION AND NATURALIZATION SERVICE
 Agency
 
                                            Case No. O-NG-227
 
                     DECISION ON NEGOTIABILITY APPEAL
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
    THE RECORD BEFORE THE AUTHORITY SHOWS THAT DURING NEGOTIATIONS FOR A
 SUPPLEMENTAL AGREEMENT BETWEEN THE UNION AND THE UNITED STATES
 DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, NEW YORK
 DISTRICT OFFICE (ACTIVITY), THE UNION REQUESTED NEGOTIATIONS ON THE
 FOLLOWING MATTERS:
 
    PROPOSAL 1C TO PROTECT THE HEALTH AND SAFETY OF EMPLOYEES, THE
 EMPLOYEES SHALL BE PLACED IN A SEGREGATED AREA SEPARATE FROM THE GENERAL
 FACILITY POPULATION.
 
    PROPOSAL 2C TO PROTECT HIS/HER HEALTH, NO DETENTION OFFICER WILL BE
 REQUIRED TO COME IN PERSONAL CONTACT WITH AN ALIEN UNTIL SUCH ALIEN HAS
 PASSED AN EXAMINATION BY A PHYSICIAN.
 
    PROPOSAL 4C ALL EMPLOYEES IN THE DISTRICT WHO MEET AND DEAL WITH THE
 PUBLIC ON A DAILY BASIS SHALL BE PROVIDED WITH COMPLETE MEDICAL CHECKUPS
 ON A TWICE-YEARLY BASIS.
 
    THE ACTIVITY RESPONDED IN WRITING TO THE UNION'S REQUEST TO NEGOTIATE
 ON THESE MATTERS, STATING, IN GENERAL, THAT THE AFOREMENTIONED PROPOSALS
 "ARE IN CONFLICT" WITH THE MASTER AGREEMENT BETWEEN THE PARTIES.
 THEREAFTER, ON BEHALF OF THE UNION, THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES (AFGE) FILED A PETITION FOR REVIEW WITH THE
 AUTHORITY.  THE AGENCY FILED A STATEMENT OF POSITION WITH THE AUTHORITY
 ASSERTING, IN PERTINENT PART, THAT THE CONTROLLING EFFECT OF CERTAIN
 PROVISIONS OF THE PARTIES' MASTER AGREEMENT MAKE, INTER ALIA, THE
 PETITION FOR REVIEW HEREIN PREMATURE.  MORE SPECIFICALLY, IN THE
 AGENCY'S VIEW, A NUMBER OF PROVISIONS OF THE PARTIES' MASTER AGREEMENT,
 INCLUDING ARTICLE 17, SECTION A, AND ARTICLE 34, SECTIONS B AND D (SEE
 APPENDIX), RAISE ISSUES AS TO WHETHER THE UNION'S PROPOSALS ARE
 CONTROLLED BY THE MASTER AGREEMENT BETWEEN THE PARTIES.  AFGE DID NOT
 FILE A RESPONSE TO THE AGENCY'S STATEMENT OF POSITION.
 
    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 THAT 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 (5 CFR
 2424.1 ET SEQ.).
 
    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.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 11, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
    ARTICLE 17, SECTION A THE SERVICE AGREES TO PROVIDE SAFE AND
 HEALTHFUL WORKING CONDITIONS, TAKING INTO ACCOUNT THE MISSION OF THE
 SERVICE AND THE INHERENT HAZARDS OF THE JOB PERFORMED.  THE PARTIES
 SHALL BE GOVERNED BY THE SAFETY AND HEALTH REGULATIONS CONTAINED IN
 CHAPTER 227 OF THE I&NS ADMINISTRATIVE MANUAL AND THE AGREEMENT.
 
    ARTICLE 34, SECTION B IT IS UNDERSTOOD BY THE PARTIES TO THIS
 AGREEMENT THAT THIS IS THE MASTER AGREEMENT AND ONLY A SUPPLEMENTAL
 AGREEMENT MAY BE NEGOTIATED AT THE LOCAL LEVEL.  THE MASTER AGREEMENT IS
 GOVERNING AND CONTROLLING AND NOTHING MAY BE INCLUDED IN THE LOCAL
 SUPPLEMENTAL AGREEMENT WHICH IS IN CONFLICT WITH THIS AGREEMENT.  THE
 RIGHTS CLAUSES APPLY TO ALL SUPPLEMENTAL AGREEMENTS NEGOTIATED.  WHERE
 PROVISIONS OF A SUPPLEMENTAL AGREEMENT ARE IN CONFLICT WITH THE TERMS OF
 THE MASTER AGREEMENT, THE TERMS OF THE MASTER AGREEMENT SHALL GOVERN.
 IT IS FURTHER UNDERSTOOD THAT THE LOCAL SUPPLEMENTAL AGREEMENTS SHALL
 NOT REPEAT OR PARAPHRASE ANY PROVISIONS OF THIS MASTER AGREEMENT.
 
    ARTICLE 34, SECTION D IF A NEGOTIABILITY DISPUTE INVOLVES A QUESTION
 SOLELY AS TO WHETHER A PROPOSAL CONFLICTS, REPEATS, OR PARAPHRASES
 PROVISIONS OF THE MASTER AGREEMENT, IT MAY BE REFERRED BY EITHER PARTY
 TO BOTH THE CENTRAL OFFICE AND THE NATIONAL AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES.  THE PARTIES WILL DISCUSS SUCH A REFERRAL WITHI