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11:0286(63)NG
The decision of the Authority follows:
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 Committee as authorized by Executive Order 12196." /2/
Based on the record, a certified committee is one which is part of a
system of committees established pursuant to the Order and conforming to
applicable regulations of the Department of Labor. /3/ Such committees
can be certified by the Secretary of Labor and, if certified, would have
the effect among others of exempting the Agency from unannounced
inspections by the Occupational Safety and Health Administration. The
Union, however, states that the provision was intended to establish only
"uncertified" health and safety committees. In this regard, the Agency
concedes that the Executive Order does not prohibit the establishment of
committees which are not certified and, further, that the establishment
of uncertified committees is within the duty to bargain.
The Authority finds, contrary to the Agency's contention, that the
provision would not require the establishment of "certified" committees.
Insofar as appears from the record, consistent with the general
language of the provision, the Union intended only the establishment of
uncertified health and safety committees at the level of bargaining.
Thus, based upon the Union's interpretation, no part of the Executive
Order which is concerned with either the obtaining of certification or
results of certification would be applicable under the disputed
provision. Rather, the provision would only require that the committees
be "in accordance with" the Order as regard those parts which are not
concerned with certification, e.g., the composition and some functions
of such committees. Hence, the contractual committees would not be part
of a certified system: They would not have the effect of exempting the
Agency from unannounced inspections, as previously mentioned, and they
would not be empowered to request, pursuant to section 1-303 of the
Order, an evaluation or inspection by the Secretary of Labor.
Therefore, the Agency's allegation cannot be sustained. Furthermore,
the provision does not appear otherwise to be outside the duty to
bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall rescind the disapproval
of this provision which was bargained on and agreed to by the parties at
the local level. /4/ Issued, Washington, D.C., February 10, 1983
Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
Leon B. Applewhaite, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The appeal as originally filed included an additional provision
(designated as Article 31, Section f). Subsequently, the Union
requested that the Authority permit it to withdraw its appeal concerning
that provision. The Union's request is hereby granted without passing
upon the Union's reason for requesting withdrawal.
/2/ Executive Order 12196-- Occupational safety and health programs
for Federal employees, provides in relevant part:
1-3. Occupational Safety and Health Committees.
1-301. Agency heads may establish occupational safety and
health committees. If committees are established, they shall be
established at both the national level and, for agencies with
field or regional offices, other appropriate levels. The
committees shall be composed of representatives of management and
an equal number of nonmanagement employees or their
representatives. Where there are exclusive bargaining
representatives for employees at the national or other level in an
agency, such representatives shall select the appropriate
nonmanagement members of the committee.
1-302. The committees shall, except where prohibited by law,
(a) Have access to agency information relevant to their duties,
including information on the nature and hazardousness of
substances in agency workplaces.
(b) Monitor performance, including agency inspections, of the
agency safety and health programs at the level they are
established.
(c) Consult and advise the agency on the operation of the
program.
1-303. A Committee may request the Secretary of Labor to
conduct an evaluation or inspection pursuant to this order if half
of a Committee is not substantially satisfied with an agency's
response to a report of hazardous working conditions.
/3/ 29 CFR Part 1960 (1981).
/4/ In so deciding, the Authority, of course, makes no judgment as to
the merits of the provision.