American Federation of Government Employees, Local 1302, Council of Prison Locals C-33 and U.S. Department of Justice, Federal Bureau of Prisons, Florence, Colorado

[ v55 p1078 ]

55 FLRA No. 175

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1302
COUNCIL OF PRISON LOCALS C-33
(Union)

and

U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FLORENCE, COLORADO
(Agency)

0-NG-2484

_____

DECISION AND ORDER ON A
NEGOTIABILITY ISSUE

November 18, 1999

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1] 

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). The appeal involves the negotiability of one proposal concerning assignment of overtime. The Agency filed a Statement of Position. The Union did not file a Response.

      For the reasons that follow, we find the proposal is outside the duty to bargain because it is inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute. Accordingly, we dismiss the petition for review, pursuant to section 2424.10 of the Authority's Regulations. [n2] 

II.     The Proposal

Except in emergency situations, over-time procedures will be utilized prior to vacating any post.

III.      Positions of the Parties

A.     Agency

      The Agency claims that "by directing the manning of posts and the payment of overtime for that duty," the proposal conflicts with its right to assign work under section 7106(a)(2)(B) of the Statute "because it limits the right of management to determine when work assignments will occur and when overtime work will be performed." Statement of Position at 5. The Agency also claims that the proposal is inconsistent with its right to determine its security practices under section 7106(a)(1) because it "limits [the Agency's] judgment regarding the degree of staffing necessary to carry out its security function[.]" Id. at 7.

      The Agency argues that, because the proposal affects its rights under section 7106(a), it does not constitute a procedure under section 7106(b)(2). In addition, the Agency claims that the proposal is not an appropriate arrangement under section 7106(b)(3) because it is not sufficiently tailored and because it excessively interferes with its management rights. The Agency argues that the Union makes only a "bare assertion that the proposal addresses its safety and security concerns," and that the Union has made "no specific arguments and cites no specific authority" regarding whether the proposal constitutes an appropriate arrangement. Id. at 9, 10.

B.     Union

      In its Petition for Review, the Union asserts that the proposal "deals with the utilization of overtime procedures prior to vacating posts[,]" and that the language of the proposal is "clear." Petition at 1. The Union claims that "the vacating of posts causes an unnecessary health and safety risk to bargaining unit employees." Id. The Union states that "[t]he United States Penitentiary Administrative Maximum (ADX) houses the most dangerous and violent Federal inmates in the system[, and that t]he mission of the ADX is to be the most secure Federal prison in the country." Id. The Union makes no other claims with respect to the negotiability of the proposal and, as noted above, the Union did not file a Response to the Agency's Statement of Position. [ v55 p1079 ]

IV.     Meaning of the Proposal

      The proposal states that, absent an emergency, overtime "procedures" will be used prior to "vacating a post." Consistent with its wording, the proposal would require the Agency -- in circumstances that do not constitute an emergency -- to maintain employee coverage at all posts by using overtime procedures. That is, the proposal would require the Agency to assign overtime to employees in order to ensure that all posts remain staffed at all times except emergencies.

V.     The Proposal Is Outside the Duty to Bargain Because It Affects Management's Right to Assign Work Under Section 7106(a)(2)(B) of the Statute

      The right to assign work under section 7106(a)(2)(B) of the Statute encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 739 (1996). Management's right to assign work includes the right to assign overtime and "to determine when the overtime will be performed." American Federation of Government Employees, Local 3157 and U.S. Department of Agriculture, Federal Grain Inspection Service, 44 FLRA 1570, 1596 (1992) (Federal Grain Inspection Service) (citing National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 670-71 (1991)).

      As the proposal in this case requires the Agency -- in all circumstances except emergencies -- to assign employees to maintain coverage at staffed posts on an overtime basis prior to leaving such posts unstaffed, it prevents the agency from determining when work assignments will occur, as well as when overtime will be assigned. Accordingly, consistent with Federal Grain Inspection Service, 44 FLRA at 1596, we find that the proposal affects management's right to assign work under section 7106(a)(2)(B) of the Statute.

      The Union does not assert that the proposal constitutes a procedure or an appropriate arrangement. The Union makes only a general statement that the proposal "deals with the utilization of overtime procedures prior to vacating posts[,]" and that "the vacating of posts causes an unnecessary health and safety risk to bargaining unit employees." Petition at 1. Moreover, as noted above, the Agency specifically claims in its Statement of Position that the proposal does not constitute a procedure or an appropriate arrangement, and the Union did not file a Response to the Agency's claims in its Statement of Position.

      Where a union does not assert that a proposal constitutes a procedure or appropriate arrangement and fails to respond to an agency's statement of position claiming that a proposal does not constitute a procedure or appropriate arrangement, the Authority will not address the issue. See American Federation of Government Employees, Council of Prison Locals, Local 171 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, El Reno, Oklahoma, 52 FLRA 1484, 1497 (1997). Even in circumstances where a union makes such an assertion, but offers no arguments or authority to support the bare assertion that a particular proposal is within the duty to bargain on either or both of these grounds, the Authority will not address the assertion, and will conclude that the proposal is not within the duty to bargain under section 7106(b)(2) or (3). See National Association of Government Employees, Local R1-109 and Department of Veterans Affairs, Medical Center, Newington, Connecticut, 53 FLRA 403, 411 (1997) (Veterans Affairs); American Federation of Government Employees, Council of Locals No. 163 and U.S. Department of Defense, Defense Contract Audit Agency, 51 FLRA 1504, 1513-14 (1996).

      Based on the foregoing, we do not address whether the proposal is an appropriate arrangement or a procedure, and conclude that the proposal is not within the duty to bargain on either ground. See Veterans Affairs, 53 FLRA at 411. Accordingly, we conclude that the proposal is outside the duty to bargain because it is inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute. [n3] 

VI.     Order

      The petition for review is dismissed. [ v55 p1080 ]


Concurring Opinion of Member Wasserman

      While agreeing that the proposal is outside the duty to bargain, I write separately because I believe that a claim that the proposal is negotiable as an appropriate arrangement has been raised.

      In my view, a common sense reading of the proposal, which requires that posts not go vacant in a maximum security prison is that such a proposal is designed to protect employees. It's apparent by the circumstances. It also matches the Union's description of the proposal as geared to avoiding risks to the "health and safety" of the bargaining unit. Such a reading is also consistent with Authority precedent, in which proposals designed to address security concerns of an agency's personnel were assessed in terms of whether they were negotiable as appropriate arrangements. See, e.g., American Federation of Government Employees, Local 3302 and U.S. Department of Health and Human Services, Social Security Administration, Dunbar Branch Office, Baltimore, Maryland, 37 FLRA 350, 358-61 (1990) (proposal describing location or circumstances for interviewing irate or potentially dangerous claimants); National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 627-29 (1990) (proposal requiring agency to provide same level of protection for employees at two separate facilities).

      However, because there is no further explanation or evidence in the record that would allow me to assess whether the proposal meets the appropriate arrangement test set out in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986), and applied in the cited cases, I join in the finding that the proposal is outside the duty to bargain.





Footnote # 1 for 55 FLRA No. 175 -

   Member Wasserman's opinion, concurring in part, is set forth at the end of this decision.


Footnote # 2 for 55 FLRA No. 175 -

   The Authority's Regulations governing negotiability appeals were revised effective April 1, 1999. See 63 Fed. Reg. 66,413 (1998). The revised regulati