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

[ v62 p372 ]

62 FLRA No. 69

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 727
(Union)

and

COURT SERVICES AND OFFENDER
SUPERVISION AGENCY
(Agency)

0-NG-2847

_____

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.

II.     Background

      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.

III.     Proposal

      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

A.      Agency

      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.

B.     Union

      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.

      In this case, the record is insufficient to determine whether the proposal impermissibly affects management's right to assign work and both parties are responsible for failing to provide the necessary information. See id. In these circumstances, the petition for review will be dismissed without prejudice to its refiling should the parties more fully develop their positions. In so doing, we note the decision in Marine Engineers' Beneficial Assoc., Dist. No. 1-PCD, 60 FLRA 828 (2005) (Marine Engineers) (Chairman Cabaniss dissenting; separate opinion by Member Pope). In that case, the union filed a response to an untimely filed agency statement of position, and the Authority majority relied, in part, on the union's response in resolving the petition. Chairman Cabaniss dissented on the ground that a merits determination was made "on an issue that has not adequately been placed by the parties before the Authority for resolution." Id. at 834. Unlike Marine Engineers, the Union in this case did not file a response, and further, did not request leave, pursuant to § 2429.26(a) of the Authority's Regulations, to file a supplemental statement. As a result, it is unnecessary to address whether the Union's response would be appropriately considered. Instead, we find the record as a whole is insufficient, and, therefore, we dismiss the petition for review without prejudice to the Union's right to refile the petition, if it so elects.

VII.     Order

      The petition for review is dismissed without prejudice to the Union's right to refile the petition, if it so elects. [ v62 p374 ]


Separate Opinion of Member Pope:

      Ordinarily, I would find that, consistent with the Authority's decision in Marine Engineers' Beneficial Assoc., Dist. No. 1-PCD, 60 FLRA 828, 829 (2005) (Marine Engineers), the Union should be provided an opportunity to file a submission addressing the Agency's allegation of nonnegotiability, following which the petition should be resolved on the merits. In this regard, it is true as a factual matter that, unlike Marine Engineers, the Union in this case did not file a response. Unlike the Chairman, however, I am unable to conclude that, as a legal matter, the factual difference is either relevant or dispositive. The Union here, as in Marine Engineers, acted within its rights in deferring its legal arguments until its response. The Agency here, as in Marine Engineers, failed to timely file a statement of position. And, as also was the case in Marine Engineers, dismissing the Union's petition penalizes the Union for the Agency's failure.

      Despite the foregoing, there is currently a vacancy in the membership of the Authority, which requires agreement between Chairman Cabaniss and me in order to resolve cases, and the Chairman is unwilling to permit the Union to supplement the record. In view of these circumstances, it would be a disservice to the parties to continue to adhere to my view. Accordingly, for the sole purpose of avoiding an impasse in the Authority's disposition of this case, I will agree to dismiss the petition for review without prejudice to the Union's right to refile. I take this extraordinary action, as I and other Members have done in the past, only to avoid further delay in resolving the petition based on what is, essentially, a procedural issue. See, e.g., United States Dep't of Labor, Wash., D.C., 61 FLRA 825, 827 (2006) (Member Pope agreeing to avoid impasse); United States Dep't of the Treasury, IRS, Small Bus./Self Employed Bus. Div., Compliance Area 6, 61 FLRA 757, 764 (2006) (same); United States Dep't of Labor, Wash., D.C., 61 FLRA 603, 607 (2006) (same); Dep't of Homeland Sec., Bureau of Immigration and Customs Enforcement, 60 FLRA 131, 138 (2004) (Member Armendariz agreeing to avoid impasse); Fort Bragg Ass'n of Educators, NEA, 30 FLRA 508, 552 (1987) (Chairman Calhoun agreeing to avoid impasse).



Footnote # 1 for 62 FLRA No. 69 - Authority's Decision

   Member Pope's separate opinion is set forth at the end of this decision.


Footnote # 2 for 62 FLRA No. 69 - Authority's Decision

   See also July 12, 2005 e-mail from Jacquette, where the Agency acknowledged that CSOs' normal work sc