11:0286(63)NG - AFGE, Council of Prison Locals and Justice, Bureau of Prisons -- 1983 FLRAdec NG

 11 FLRA No. 63
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, COUNCIL OF PRISON
 LOCALS
 Union
 
 and
 
 DEPARTMENT OF JUSTICE,
 BUREAU OF PRISONS
 Agency
 
                                            Case No. O-NG-550
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents issues
 relating to the negotiability of the following two provisions contained
 in a locally executed agreement which were disapproved as not being in
 accordance with applicable laws, rules or regulations by the Agency head
 upon review pursuant to section 7114(c) of the Statute.  /1/ Upon
 careful consideration of the entire record, including the parties'
 contentions, the Authority makes the following determinations.
 
                                Provision 1
 
    Article 23, Section (e):
 
          The Central Office, Regional Offices and each institution will
       have one to six employees, that is:  between 3% and 5% of the
       number of eligible employees locally, involved in the Upward
       Mobility Program at any one time.
 
    In National Treasury Employees Union and Internal Revenue Service, 2
 FLRA 281 (1979), the Authority held that a proposal requiring the agency
 to "fill" certain percentages of available vacancies as upward mobility
 positions directly interfered with management's right to assign
 employees under section 7106(a)(2)(A).  In the instant case, the Agency
 contends that the provision would require the Agency to select a certain
 percentage of a specific group of current employees and thus would
 require the Agency to fill a certain percentage of vacancies with such
 employees.  The language of the provision is consistent with this
 interpretation, and the Union does not dispute it.  So interpreted, the
 provision is substantively identical to the proposal in Internal Revenue
 Service, and, for the reasons stated therein, Provision 1 herein is also
 outside the duty to bargain under section 7106(a)(2)(A) of the Statute.
 Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review as to Provision
 1 be, and it hereby is, dismissed.
 
                                Provision 2
 
    Article 27, Section (a):
 
          The Employer and Union shall be responsible for the
       establishment and maintenance of an effective and comprehensive
       Occupational Safety and Health Program to comply with all
       standards of Executive Order 12196, dated February 26, 1980.
 
    Article 27, Section (g):
 
          The Employer at each institution shall establish a Health and
       Safety Committee in accordance with the provisions of Executive
       Order 12196.  Committees will be composed of equal numbers of
       management and non-management representatives.  Non-management
       committee members will be designated by the local union.
 
    The Agency contends that this provision is nonnegotiable solely "to
 the extent that (the) two sections purport to establish a 'certified'
 Health and Safety Commit