American Federation of Government Employees, Local 727 (Union) and Court Services and Offender Supervision Agency (Agency)

[ v59 p674 ]

59 FLRA No. 121

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 727
(Union)

and

COURT SERVICES
AND OFFENDER SUPERVISION AGENCY
(Agency)

0-NG-2720

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

February 20, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and Part 2424 of the Authority's Regulations. The appeal concerns two proposals relating to attendance at court proceedings by unit employees. The Agency filed a Statement of Position and a Reply and the Union filed a Response.

      For the following reasons, we find that the proposals are within the duty to bargain.

II.     Background

      The Court Services and Offender Supervision Agency was established as an independent Federal agency pursuant to the National Capital Revitalization and Self-Government Improvement Act of 1997 and has as its primary mission providing supervisory and treatment services to individuals on pre-trial release, probation, and parole within the District of Columbia. The Court Supervision Officers (CSOs) represented by the Union provide the supervisory services and, as a part of their jobs, are required to appear in court to facilitate the legal processing of cases involving the individuals for whom they are responsible.

      The underlying bargaining in this case arose when the Agency proposed policies governing the appearance of CSOs at court proceedings. On February 18, 2003, [ v59 p675 ] the Union submitted five proposals in response to that policy (the February 18 proposals). The parties met to discuss those proposals on March 7, 2003. At that meeting, the Union revised its February 18 Proposals 4 and 5 and offered a counterproposal, at one point labeled Proposal 6, to an Agency-proposed revision to Proposal 5. [n1]  See Attachments to Petition for Review. The Union filed a petition for review as to its revised Proposal 4, and its counterproposal to the Agency's revised Proposal 5 (the March 7 proposals). However, the petition for review was in response to the Agency's allegation of nonnegotiability regarding the Union's February 18 proposals. Record of Post-Petition Conference at 2.

      The Authority issued a show cause order requiring the Union to demonstrate why the petition should not be dismissed because the Agency had not alleged that the March 7 proposals are nonnegotiable. The Union then formally requested an allegation of nonnegotiability as to the March 7 proposals and the Agency declined to provide the requested allegation. Union Response to Show Cause Order dated June 6, 2003. Specifically, in its response to the show cause order, the Union informed the Authority that it requested an allegation of nonnegotiability from the Agency and that the Agency indicated that it would not respond. See Union Response to Show Cause Order and the Attachments thereto. Based on the Agency's failure to provide the requested allegation, the Authority's Case Control Office determined that the case was properly before the Authority. Authority Order dated August 18, 2003. See, e.g., NEA, OEA, Ft. Bragg Assoc. of Educators, 53 FLRA 898, 900-01 (1997) (Ft. Bragg) (agency failure to respond to request for allegation constitutes a constructive allegation of nonnegotiability).

      As set forth above, the Petition for Review contains two proposals: the Union's March 7 revision of its February 18 Proposal 4, set forth below as Proposal 4, and the Union's March 7 counterproposal to the Agency's revision of the Union's February 18 Proposal 5 (at one point labeled Proposal 6), set forth below as Proposal 5. As will be discussed, infra, the Agency takes the position that the March 7 proposals are not properly before it or the Authority for any negotiability determination. As a result, the Agency's Statement of Position and Reply address the Union's February 18 version of Proposal 4 and Proposal 5.

III.     Proposals

Proposal 4 (The Union's February 18 Proposal 4 as revised on March 7)
CSOSA shall CONSIDER allowing bargaining unit employees whose offices are in close proximity to D.C. Superior Court to telephone the court in lieu of reporting to the Court until their case is called.
Proposal 5 (The Union's March 7 counterproposal to the Agency's revision of the February 18 Proposal 5)
The scheduling of the CSO's lunch break may be subject to court requirements. If because of court requirements, a CSO has to miss lunch or work through lunch, they will receive either compensatory time or overtime in accordance with federal regulations.

IV.     Positions of the Parties

A.     Agency

      The Agency contends that the Union's March 7 proposals were submitted in off the record discussions and are not part of the official record of this case. For that reason, the Agency contends that the proposals were not the subject of "official bargaining," Statement of Position (Statement) at 8, and it was not obligated to provide an allegation of nonnegotiability to the Union. The Agency states that there is "no issue of negotiability in question[,]" Statement at 3, and argues that the petition for review should be dismissed.

      The Agency goes on to address the negotiability of the February 18 version of the Union's Proposal 4 and Proposal 5, the only proposals it believes to be properly before the Authority. According to the Agency, Proposal 4 affects its right to assign work under § 7106(a)(2)(B) of the Statute because it would control or determine how mandatory in-person court appearances will be performed. The Agency also maintains that Proposal 4 concerns a "permissive" matter because it relates to the method of how CSOs will attend court. Id. at 10.

      The Agency contends that Proposal 5 also affects management's right to assign work under § 7106(a)(2)(B) because it interferes with management's ability to require employees to report to a particular duty station. The Agency also asserts that Proposal 5 concerns a "permissive" matter because it relates to the methods it uses to arrange employees' attendance at [ v59 p676 ] court. and is not an appropriate arrangement under § 7106(b)(3).

      The Agency disputes the Union's claim that Proposals 4 and 5 are appropriate arrangements under § 7106(b)(3) of the Statute, claiming that: (1) the requirement that CSOs appear in court as scheduled does not adversely affect the CSOs; and (2) any benefit to employees resulting from the proposals is outweighed by the proposals' excessive interference with management's right to assign work.

B.     Union

      The Union claims that the March 7 bargaining session in which it offered Proposals 4 and 5 was not off the record. According to the Union, this is demonstrated by the fact that the Union offered revisions to Proposals 1-3 at that session and the Agency agreed to those revisions. Moreover, the Union contends, it had a right to amend its proposals during bargaining. The Union maintains that by refusing to consider the amended proposals the Agency failed to bargain in good faith. [n2] 

      The Union contends that Proposal 4 only requires the Agency to "give consideration to" a practice previously used by CSOs of phoning the court, instead of reporting to the court, in order to determine when their case would be called. Union Response (Response) at 4. According to the Union, Proposal 4 only pertains to CSOs' initial contact with the court and does not authorize CSOs to refrain from reporting to court when their case is called.

      According to the Union, once CSOs report to court for their hearing, they are required to remain in the courtroom until their case is called. The Union maintains that the proposal "would allow employees to maximize their time in complying with th[e] supervision requirements for their cases." Response at 5.

      The Union explains that Proposal 4 is intended to mitigate the amount of time spent by CSOs attempting to check in to the court. According to the Union, enhanced security procedures involve long lines waiting for clearance. The Union claims that the proposal, by requiring the Agency to consider allowing CSOs to check in by phone, informing the court clerk of their availability, and responding to calls notifying them that their case is coming up, would save CSOs time that they could use to catch up on their work and avoid having to work on weekends.

      The Union explains that CSOs "routinely miss lunch because of the ongoing court proceedings and receive no compensation from the Agency." Response at 5-6. The Union explains that Proposal 5 is "designed to mitigate the fact that CSO[]s do miss lunch because of the changes in court hearing schedules." Response at 7. According to the Union, the proposal requires the Agency to compensate CSOs, "in accordance with [F]ederal regulations," when they miss lunch due to court proceedings. Id.

      The Union claims that the proposals are appropriate arrangements intended to mitigate the adverse effects of management's policies regarding CSOs' appearance at court hearings in assigned cases and that they do not excessively interfere with management's rights.

      The Union requests a hearing to resolve the issue of "whether there was a[n] agreement by both parties to engage in off the record discussions." Id. at 8.                                        

V.     Analysis and Conclusions

A.     Preliminary Matters

      We reject the Agency's argument that it was not obligated to provide the Union with an allegation of nonnegotiability for the March 7 proposals because those proposals were offered in off-the-record bargaining.

      The Union formally requested an allegation of nonnegotiability from the Agency as to the March 7 proposals and thereby put those proposals on the record in the case. Thus, whether or not the March 7 discussions were off the record, that request created an obligation on the part of the Agency to respond, on the record, with its position as to the negotiability or nonnegotiability of the proposals. The Agency's failure to respond gave rise to the Union's right to appeal the proposals under § 7117(a) of the Statute and Part 2424 of the Authority's Regulations. [n3]  See Ft. Bragg.

      Accordingly, we find that the petition for review as to the March 7 Proposals 4 and 5 is properly before the Authority. [ v59 p677 ]

B.     Meaning of the Proposals

      By its terms, and as explained by the Union, Proposal 4 requires the Agency to consider allowing CSOs whose offices are close to the court to phone the court to check in with the court until their case is called, instead of reporting in person to the court. Proposal 5, by its terms, requires the Agency, consistent with Federal regulation, to compensate CSOs for any overtime worked when the CSOs miss their lunch period as a result of their required participation in court proceedings.

C.     Proposal 4 is within the Duty to Bargain

      As noted above, the Agency did not address the revised Proposal 4. However, the only difference between that version and the February 18 version that the Agency did address, is that the revised version adds the word "consider" to the proposal. Even if the Agency had alleged that the revised Proposal 4 affects management's right to assign work under § 7106(a)(2)(B) of the Statute, it would not have established that the proposal is outside the duty to bargain.

      The Authority has consistently held that proposals that require management to "consider" certain matters in exercising a right under § 7106 do not affect the right. See AFGE, Local 3172, 35 FLRA 1276, 1282 (1990); AFGE, Dep't of Education Council of AFGE Locals, 35 FLRA 56, 61 (1990); AFGE, AFL-CIO, Local 1426, 34 FLRA 716, 719-20 (1990) (Local 1426); NLRB Professional Assoc., 32 FLRA 557, 563 (1988); AFSCME, Local 2027, 27 FLRA 191, 192-93 (1987). Specifically, the Authority has interpreted the term "consider" to mean that management may be required to review certain factors, but it is free to base its exercise of the right on grounds other than those factors. Id. Stated differently, the use of the term in a proposal does not direct a particular result, but preserves management's discretion to decide how to act. See, e.g., Local 1426, 34 FLRA at 719-20.

      Consequently, by requiring management to consider allowing CSOs to telephone the court to check on the status of scheduled hearings in their cases, the proposal does not affect management's right to assign work. [n4]  In any given instance, the proposal would only require the Agency to look at the circumstances, review the effect of those circumstances on the accomplishment of its workload objectives, and decide whether or not to allow a CSO to call the court and learn whether the court has adjusted the CSO's time of appearance to a time other than the time scheduled based.

      Accordingly, we find that Proposal 4 does not affect management's right to assign work under § 7106(a)(2)(B) of the Statute and that it is within the duty to bargain. [n5] 

D.      Proposal 5 is Within the Duty to Bargain

      Proposal 5 requires the Agency to compensate employees who work through their lunch periods in order to accommodate court proceedings in their cases with overtime or compensatory time consistent with Federal regulations. The proposal does not affect management's right to assign work because it does not require the Agency to provide CSOs a duty free lunch period despite the demands of their assigned work. [n6] / In other words, the proposal does not preclude the Agency from requiring CSOs to perform work on their lunch hour. Rather, the proposal requires the Agency to compensate CSOs as provided in applicable regulations whenever they perform work during their lunch hour. Further, nothing in the proposal would require the Agency to compensate CSOs for work performed during lunch hours in circumstances where they would not otherwise be entitled to such compensation. The proposal simply requires the Agency to compensate CSOs with overtime or compensatory time only in those situations where they would be entitled to receive it under applicable Federal regulations. [n7] / See, e.g., Veterans Admin. Medical Ctr, Palo Alto, Cal., 36 FLRA 98, 109 (1990). Cf. United States Dep't of the Air Force, Travis AFB, Cal., 56 FLRA 434, 437 (2000) (requiring compensation for bona fide duty free lunch period inconsistent with applicable Federal regulations). In addition, it should be noted that the Agency nowhere addresses this proposal. [ v59 p678 ]

      Accordingly, we find that Proposal 5 is consistent with law and within the Agency's duty to bargain.

VI.     Order

      The Agency shall upon request, or as otherwise agreed to by the parties, bargain with the Union over the proposals.


APPENDIX

The various proposals referenced in the record of this case are set forth below. The proposals set forth in bold are the proposals that the Union initially appealed in its Petition for Review.

1. The February 18 Proposals 4 and 5:

Proposal 4
CSOSA shall allow bargaining unit employees whose offices are in close proximity to D.C. Superior Court to telephone the Court to check in [in] lieu of reporting to the Court until their case is called.
Proposal 5
Once they have reported to Court and their case is not being called, bargaining unit employees shall either report to the satellite office at 633 Indiana Avenue NW or remain in close proximity to D.C. Superior Court.

Petition for Review at 1.

2. The Union's proposed March 7 revisions to its February 18 Proposals 4 and 5:

Proposal 4
CSOSA shall CONSIDER allowing bargaining unit employees whose offices are in close proximity to D.C. Superior Court to telephone the Court to check in [in] lieu of reporting to the Court until their case is called.

Petition for Review at 1.

      Proposal 5

      Once they have reported to Court and their case is not being called, bargaining unit employees shall either take care of other official business at 300 Indiana Ave. NW or report to the satellite office at 633 Indiana Ave. NW.

Attachment to Petition for Review (hand-written proposal).

3. The Union's counterproposal to the Agency's proposed revision of the Union's February 18 Proposal 5:

Proposal 5
The scheduling of the CSO's lunch break may be subject to court requirements. If because of court requirements, a CSO has to miss lunch or work through lunch, they will receive either compensatory time or overtime in accordance with federal regulations.

Petition for Review at 1.



Footnote # 1 for 59 FLRA No. 121 - Authority's Decision

   The text of the February 18 Proposal 4 and 5, the Union's proposed revisions to Proposals 4 and 5 offered at the March 7 bargaining session, and the Union's counterproposal to the Agency's revised Proposal 5 is set forth in the Appendix to this decision.


Footnote # 2 for 59 FLRA No. 121 - Authority's Decision

   In its Response to the Agency's Statement of Position, the Union indicated that it had also filed an unfair labor practice charge with the Authority. Response at 3. The Case Control Office contacted the Authority's Washington Regional Office and confirmed that the charge was withdrawn. Consequently, there is no basis for dismissing the case under § 2424.30 of the Authority's Regulations.


Footnote # 3 for 59 FLRA No. 121 - Authority's Decision

   For this reason, it is not necessary to hold a hearing to resolve the factual dispute as to whether the discussions concerning the proposals was off the record.


Footnote # 4 for 59 FLRA No. 121 - Authority's Decision

   Similarly, even if the proposal concerned a "permissive" matter under § 7106(b)(1) of the Statute, the proposal would not affect the right involved because it would not require the Agency to adopt a particular method or means of performing work, but would preserve the Agency's discretion as to those matters.


Footnote # 5 for 59 FLRA No. 121 - Authority's Decision

   For this reason, it is unnecessary to address whether the proposal constitutes an appropriate arrangement under § 7106(b)(3) of the Statute.


Footnote # 6 for 59 FLRA No. 121 - Authority's Decision

   Nothing in the record suggests that CSOs are compensated for their lunch hours because their job requires them to perform work during that period. See, e.g., Matter of Richard H. Bush