American Federation of Government Employees, Local 727 (Union) and Court Services and Offender Supervision Agency (Agency)
[ v62 p372 ]
62 FLRA No. 69
OF GOVERNMENT EMPLOYEES
COURT SERVICES AND OFFENDER
DECISION AND ORDER
ON A NEGOTIABILITY ISSUE
March 28, 2008
Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member [n1]
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under § 7106(a)(2)(E) of the Federal Service Labor-Management Relations Statute (Statute), and concerns the negotiability of one proposal concerning the assignment of community supervision officers (CSO) to work weekends. The Agency did not file a statement of position and the Union did not file a response.
For the following reasons, we dismiss the petition for review without prejudice.
As set forth in AFGE, Local 727, 59 FLRA 674 (2004), the Court Services and Offender Supervision Agency (CSOSA) "has as its primary mission providing supervisory and treatment services to individuals on pre-trial release, probation, and parole within the District of Columbia." Id. at 674. The CSOs represented by the Union provide "supervisory services" to persons convicted of criminal offenses (offenders), but who are not incarcerated. Id.
This case arose when the Agency issued Operational Instruction CSS-2005-4 (Instruction), "Community Service As A Sanction," which standardized procedures for referring offenders to community services as a sanction. The Instruction notes that, "[t]raditionally," "community-based sanction activities have been all day events that have taken place on Saturdays." Petition for Review, Attachment, Instruction at 1. The Instruction further states, in Part III, that "[a] team of three CSOSA staff will be assigned to each [authorized] community service activity; two community relations specialists (CRS) and one CSO." Id. at 2. When the Union learned of the Instruction, and noted the requirement for CSOs to work on Saturdays, it requested to bargain with the Agency and submitted the proposal at issue herein.
The Union's proposal would delete a portion of the sentence quoted above from Part III of the Instruction, which would then read as follows:
A team of three CSOSA staff will be assigned to each community service activity: two community relations specialists (CRS)[.]
Id., Attachment, Proposals at Item 10.
IV. Meaning of the Proposal
According to the Union, as a past practice, the normal work schedule of CSOs has been Monday through Friday. The Union states that the Instruction would require CSOs to work on weekends and that the proposal would delete that requirement. The Union further states that CSOs "have always had the option of working on . . . weekends[.]" Id. at Item 12. The Union explains that requiring them to do so would affect their personal lives, presenting issues with respect to child care, transportation, other employment, family obligations, educational programs, and vacation plans. The Union claims that the Agency issued the Instruction without negotiating over the change in conditions of employment or the impact and implementation of the change.
V. Positions of the Parties
In its allegation of nonnegotiability, the Agency states that the proposal would restrict management's right to assign work under § 7106(a)(2)(B) of the Statute. Petition for review, Attachments, E-mail from Frank Jacquette (Jacquette) to Carolyn Brown, dated [ v62 p373 ] July 21, 2005 and E-mail from Brown. [n2] The Agency's allegation did not include any supporting rationale. The Agency did not file a statement of position.
The petition for review contains only the Union's explanation of the meaning and effect of the proposal. The Union, as is its right, declined to state its legal arguments in its petition for review. The Union stated that, "[t]he Union will wait." Petition for Review, Part III, ¶ 13. The Union did not file a response or, pursuant to § 2429.26(a) of the Authority's Regulations, request leave to submit a supplemental statement.
VI. Analysis and Conclusions
The record in this case consists of the Union's petition for review, containing its explanation of the meaning and effect of its proposal, and the Agency's allegation of nonnegotiability, which claims, without argument, that the proposal affects its right to assign work under § 7106(a)(2)(B) of the Statute. The Agency did not, as required under § 2424.24(a) of the Authority's Regulations, file a statement of position informing the Authority why the proposal is contrary to law and, as a result, did not "set forth its understanding of the proposal[,]" "state any disagreement with the facts, arguments, or meaning of the proposal," or "supply . . . arguments and authorities in support of its position."
The Union, as noted above, deferred a statement of its legal position until its response to the Agency's statement of position. However, the Agency did not file a statement and the Union did not file a response or request leave to file a supplemental statement. Thus, the Union did not inform the Authority as to why the proposal is not contrary to law and, specifically, why the proposal falls within an exception to management rights under § 7106(b).
In the absence of the information regarding the parties' positions required under § 2424.24(a) and 2424.25(a) of the Authority's Regulations, the record is insufficient for us to make a negotiability determination. In particular, without the Agency's explanation as to how the proposal affects management's right to assign work, and the Union's response to that explanation, including any claims under § 7106(b), it is not possible to determine whether the proposal is contrary to law.
Where the record is not sufficiently clear for the Authority to assess the impact of a proposal on management's rights, the Authority has dismissed the petition for review. See, e.g., NAGE, Local R4-45, 54 FLRA 669, 672 (1998); NFFE, Local 2148, 53 FLRA 427, 438-39 (1997); NEA, OEA, Laurel Bay Teachers Assoc., 51 FLRA 733, 738-39 (1996); NFFE, Local 2024, 48 FLRA 1411, 1413 (1994); NFFE, Local 15, 30 FLRA 1046, 1076-78 (1988). In the foregoing decisions, where the insufficiency of the record related primarily to the meaning of the proposals, the Authority simply "dismissed" the petitions, without stating whether the dismissal was with prejudice. By contrast, in Patent Office Prof'l Ass'n, 56 FLRA 69, 99-101 (2000) (POPA) (Chairman Wasserman and then Member Cabaniss dissenting as to other matters), where the Authority found the record insufficient for it to determine whether proposals were negotiable under § 7106(b)(3), the Authority dismissed the petition for review without prejudice to the union's right to refile the petition.