31:0037(9)NG - AFGE Local 2052 and Justice, Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia -- 1988 FLRAdec NG
[ v31 p37 ]
The decision of the Authority follows:
31 FLRA NO. 9 31 FLRA 37 10 FEB 1988 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2052 Union and DEPARTMENT OF JUSTICE, BUREAU OF PRISONS, FEDERAL CORRECTIONAL INSTITUTION, PETERSBURG, VIRGINIA Agency Case No. 0-NG-1401 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability petition filed by the Union under section 7105(a)(2)(D) of the Federal Service Labor - Management Relations Statute (the Statute). The petition concerns seven Union proposals. For the reasons discussed below, we find that five of the proposals are not properly before us. The petition is dismissed as to these proposals, without prejudice to the Union's right to file a petition concerning them in the future, if the conditions for review under part 2424 of our Regulations are met. The remaining proposals concern (1) the extent to which collective bargaining agreements will take precedence over the provisions of conflicting Agency regulations, and (2) employees' rights to refuse orders which would require then to violate law. We find that these proposals are within the duty to bargain. II. Threshold Issues The Agency and Union were engaged in the negotiation of a local supplemental agreement on October 27 and 28, 1986. During negotiations, Agency representatives alleged that a number of proposals were nonnegotiable. The Union representative requested the Agency representative to initial those proposals which the Agency alleged were nonnegotiable. The Union representative also initialed the results of the negotiations, including the reasons for declaring the proposals nonnegotiable, and forwarded the information to the Union. On a later date, the Agency received a letter from the Union requesting allegations of nonnegotiability of the proposals. The Agency responded by advising the Union that the Union had been advised of the Agency's allegations of nonnegotiability at the conclusion of the negotiations. A. Position of the Parties The Agency argues in a Motion to Dismiss that the Union's petition for review is not properly before the Authority because it was untimely filed. The Agency asserts that the Union's request for the Agency to initial those proposals which the Agency had orally declared nonnegotiable was sufficient to meet the Authority's requirement for a "written" request as a prerequisite for a negotiability appeal. The Agency also argues that the petition should be dismissed as to certain proposals because these proposals conflict with a controlling national agreement. The Union disputes the Agency's arguments and asserts that its petition complies with the Authority's Regulations governing negotiability appeals. B. The Petition Is Timely Contrary to the Agency's arguments in its Motion to Dismiss, the Union's petition is not untimely. Under section 2424.3 of our Regulations, a union has the right to file a negotiability petition when it receives written allegations which were not requested by the union. See, for example, American Federation of Government Employees, National GSA Council (No. 236), Local 1496 and General Services Administration, Region 3, 24 FLRA 928, 929 (1986). However, a union is not required to file a petition in such circumstances in order to preserve its right to appeal. A union also may initiate the appeals process by, serving a written request for allegations on the agency on a later date. Id. If the agency does not provide the requested allegations, the union may file a petition which is not subject to the time limits in section 2424.3 of our Regulations. For example, American Federation of Government Employees, AFL - CIO, Local 2494 and Strategic Weapons Facility Pacific, Bremerton, Washington, 7 FLRA 590, 591 n.2 (1982). This is what occurred here. Although the Agency provided the Union with written allegations of nonnegotiability months prior to the Union's petition, the record indicates that these allegations were not provided in response to a written Union request. The Union did not appeal from these allegations. On a later date the Union, in writing, requested the Agency's allegations. The Agency's response did not include the requested allegations. Since a petition for review is not subject to the time limits of section 2424.3 in these circumstances, this Union petition is not untimely. We decline to change this long-standing practice as requested by the Agency. C. Two Union Proposals Are Properly Before Us The Union's petition references seven proposals. The Agency claims that the petition should be dismissed as to all but one of the proposals because the negotiation of these proposals is barred by a controlling national agreement. We reject this claim. A union is entitled to a decision on negotiability issues under part 2424 of our Regulations if the parties are in dispute over whether the union's proposals are inconsistent with law, rule, or regulation, and the union's petition is otherwise procedurally correct. It is entitled to a decision despite the claimed existence of additional duty-to-bargain issues, for example, the Agency's assertion that the negotiation of the Union's proposals is barred by a controlling national agreement. American Federation of Government Employees, Local 12, AFL - CIO and Department of Labor, 26 FLRA 768, 769 (1987). Additional issues regarding the duty to bargain should be resolved in other appropriate proceedings. Id. However, the Agency's only contention as to four Union proposals--which are referenced in the petition as proposals 1, 2, 3, and 5--is that the proposals conflict with the national agreement. Agency Statement of Position at 5. The Union does not dispute this contention. Accordingly, we find that these proposals are not properly before us under part 2424 of our Regulations. Id. We will consider petitions concerning negotiability issues only where the parties are in dispute as to whether a proposal is inconsistent with law, rule, or regulation. Finally, we find that the petition also should be dismissed as to one of the remaining three proposals. As referenced in the Union's petition, proposal 7, which concerns the Agency's "use of recording devices," contained three sentences. In its response, the Union has requested that its petition be withdrawn as to two of these sentences and has reworded the third sentence. Union Response at 27-28. In our opinion the new wording changes the meaning ofthe proposal. Based on the record, the Union has not requested an allegation concerning this wording and the Agency has not had the opportunity to respond to such a request as provided under part 2424 of our Regulations. For these reasons, the petition for review must also be dismissed as to this proposal. III. Proposal 1 Article II, Governing Laws and Regulations, Section 2. Agency Regulations Where any agency regulation conflicts with this agreement or other negotiated agreements, the Agreements shall govern. A. Positions of the Parties The Agency argues that the petition should be dismissed as to this proposal because the Union's explanation of the proposal--that its requirements only apply to Agency regulations which postdate negotiated agreements--is inconsistent with the proposal's plain meaning. The Agency also maintains that the proposal is nonnegotiable because: (1) it would interfere with the exercise of management's rights under section 7106 of the Statute when such rights are exercised by way of Agency regulations; and (2) it would prevent the Agency from exercising its right to object to Union proposals in negotiations, or provisions agreed to by local parties, on the ground that the proposals or the locally negotiated provisions conflict with Agency regulations for which a compelling need exists under section 7117(a)(2) of the Statute. The Union maintains that the purpose of the proposal is to prevent the Agency from issuing regulations which conflict with "the Agreement." Union Response at 3. The Union argues that the proposal is negotiable because it merely parallels the requirements of section 7116(a)(7) of the Statute. B. Analysis and Conclusion Based on its plain wording, this proposal would require that collective bargaining agreements take precedence over conflicting provisions in Agency regulations which predate, as well as those which postdate, agreements. Although the Union's explanation is inconsistent with the proposal's wording, we are able to provide a negotiability determination because the meaning of the proposal is plain and its implications are clear relative to the requirements of applicable law, rules, and regulations. We do not rely on the Union's explanation. See American Federation of Government Employees, AFL - CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command - Redstone Arsenal Commissary, 27 FLRA 69, 79-80 (1987), petition for review filed as to other matters sub non. U.S. Army Missile Command v. FLRA, No. 87-7445 (11th Cir. July 17, 1987). In American Federation of Government Employees, AFL - CIO, Local 1458 and U.S. Department of Justice, Office of the U.S. Attorney, Southern District of Florida, 29 FLRA 3, 7-8 (1987) (Provision 2) we held that a provision which would subordinate to the negotiated agreement any conflicting agency regulations was negotiable. Insofar as that provision applied to agency regulations which predated the agreement, we found that the provision merely required the agency to meet its burden of establishing the compelling need for its regulations when a conflicting proposal was at issue. We also found that the provision was negotiable insofar as it applied to agency regulations issued after the effective dates of agreements because it was consistent with section 7116(a)(7) of the Statute, which provides that subsequently, issued rules and regulations, with one statutory exception, cannot invalidate terms of a preexisting negotiated agreement. The requirements of this proposal duplicate the requirements of the provision in Southern District, 29 FLRA 3, 7-8 (1987). Therefore, for the reasons explained in Southern District, we find that this proposal is negotiable. See also International Plate Printers, Die Stampers and Engravers Union of North America, AFL - CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing Washington, D.C., 25 FLRA 113 (1987) (Provision 1). The Agency's argument that this proposal would interfere with the exercise of management's rights under section 7106(a) cannot be sustained. Proposals which conflict with those rights are not negotiable, and provisions in collective bargaining agreements which conflict with those rights are not enforceable. See, for example, United States Department of Transportation, Federal Railroad Administration and American Federation of Government Employees, Local 2814, 15 FLRA 401, 402 (1984), where the Authority found that an arbitrator's award may not interpret or enforce a provision of a collective bargaining agreement to deny the authority of an agency to exercise its statutory rights under section 7106(a). Accordingly, the Agency may assert that a union provision or an arbitrator's award violates its rights. In connection with this proposal, the Agency's objection under section 7106(a) constitutes speculation. Nothing in Proposal 1 prevents the Agency from asserting a violation of its rights in the future. For these reasons we conclude that the proposal would not affect the exercise of management's rights under section 7106 of the Statute as contended by the Agency and is therefore negotiable. IV. Proposal 2 Article III, Personal Rights, Section 2 Unlawful Orders Employees have the right to refuse orders that would require the employees to violate law. A. Positions of the Parties The Agency asserts that this proposal would preclude supervisors and management officials from instructing employees to engage in actions which would violate Federal and state criminal laws. The Agency maintains that the proposal is nonnegotiable because (1) it covers matters (criminal law violations) which are outside the definition of "conditions of employment" under section 7103(a)(12) and (14) of the Statute, and (2) its implementation would require decisions (applying Federal and state criminal laws) which are beyond the powers provided arbitrators and the Authority under section 7121(a) of the Statute. The Union asserts that the proposal is negotiable. It argues that management does not have the right to require an employee to violate the law. B. Analysis and Conclusion This proposal is within the duty to bargain. The Authority has held, consistent with section 7106(a)(2) of the Statute, that management must exercise its reserved rights under that section in accordance with applicable laws. See, for example, Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA No. 76, slip op. a 16-19 (1987) (exercising the rights to direct and assign work to employees when establishing performance standards and critical elements); American Federation of Government Employees, AFL - CIO, International Council of U.S. Marshals Service Locals and Department of Justice, U.S. Marshals Service, 11 FLRA 672, 676-78 (1983) (Proposal 4) (exercising the right to discipline and assign work in connection with employee reassignments). Proposal 2 merely requires management to exercise its rights to give direction to employees in accordance with law. We reject the Agency's contentions that this proposal is not concerned with conditions of employment. The proposal concerns Agency directions to unit employees which derive solely from the employment relationship. Therefore, the proposal is concerned with conditions of employment within the meaning of section 7103(a)(14) of the Statute. Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 236-37 (1987). Further, section 7103(a)(14)(A) - (C) does not exclude the matters covered by this proposal from the definition of conditions of employment. We also reject the Agency's contention that the proposal is nonnegotiable because its implementation may require arbitrators to interpret or apply criminal laws when resolving grievances. Section 7103(a)(9) of the Statute defines the subjects which may be covered under negotiated grievance procedures to include "any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment" (emphasis added) as well as complaints "concerning any matter relating to the employment of the employee." Disputes concerning the application of this proposal plainly would fall within this expansive definition. Further, nothing in the Statute or the legislative history indicates that the phrase "any law" excludes criminal laws. Accordingly, we cannot conclude that Congress intended such an exclusion. Compare Department of the Treasury, Internal Revenue Service, Jacksonville District and Department of the Treasury, Internal Revenue Service, Southeast Regional Office of Inspection, 23 FLRA 876, 878-79 (1986) (an employee's right to be represented in an investigatory examination under section 7114(a)(2)(B) of the Statute extends to criminal investigations). V. Order The Agency must upon request (or as otherwise agreed to by the parties) bargain concerning Proposals 1 and 2. 1 The petition is dismissed as to the remaining proposals referenced in the petition, without prejudice to the Union's right to file a negotiability petition in the future as to these proposals if the conditions governing review of negotiability issues are met. Issued, Washington, D.C., February 10, 1988. Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES Footnote 1 In finding that these Proposals are within the duty to bargain, the Authority makes no judgment as to their merits.