American Federation of Government Employees, AFL-CIO, Local 1661 and Department of Justice, Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut

 2 FLRA No. 56
 
 MR. RONALD D. KING, DIRECTOR
 CONTRACT AND APPEALS DIVISION
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 1325 MASSACHUSETTS AVENUE, NW.
 WASHINGTON, D.C. 20005
 
                     RE:  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
                          AFL-CIO, LOCAL 1661 AND DEPARTMENT OF 
                          JUSTICE, BUREAU OF PRISONS, FEDERAL
                          CORRECTIONAL INSTITUTION, DANBURY,
                          CONNECTICUT, Case No. 0-NG-43
 
 DEAR MR. KING:
 
    REFERENCE IS MADE TO THE UNION'S PETITION FOR REVIEW, THE AGENCY'S
 STATEMENT OF POSITION AND THE UNION'S RESPONSE THERETO, IN THE
 ABOVE-ENTITLED CASE.
 
    THE RELEVANT FACTS OF THIS CASE, AS SET FORTH IN THE RECORD, ARE AS
 FOLLOWS:  THE PETITIONER HEREIN, AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1661(THE UNION), IS ONE OF THE LOCAL UNIONS
 COMPRISING THE AFGE COUNCIL OF PRISONS LOCALS(THE COUNCIL).  THE COUNCIL
 HAS NEGOTIATED WITH THE FEDERAL PRISON SYSTEM, OF WHICH THE DANBURY
 FEDERAL CORRECTIONAL INSTITUTION(THE ACTIVITY) IS A COMPONENT, A MASTER
 AGREEMENT COVERING A UNIT OF VIRTUALLY ALL ELIGIBLE EMPLOYEES OF THE
 FEDERAL PRISON SYSTEM NATION-WIDE.  ARTICLE 9 OF THE MASTER AGREEMENT,
 ENTITLED "NEGOTIATIONS AT THE LOCAL LEVEL" (SET FORTH IN AN APPENDIX TO
 THIS LETTER INSOFAR AS RELEVANT) PROVIDES FOR THE NEGOTIATION OF LOCAL
 SUPPLEMENTARY AGREEMENTS AND PRESCRIBES THE MATTERS WHICH ARE
 APPROPRIATE FOR LOCAL BARGAINING.  SECTION G OF ARTICLE 9 PROVIDES A
 MECHANISM FOR ASSURING THAT SUPPLEMENTAL AGREEMENTS ARE IN COMPLIANCE
 WITH THE MASTER AGREEMENT AS WELL AS WITH APPLICABLE LAWS AND
 REGULATIONS, AND SPECIFICALLY PROVIDES THAT "(D)ISPUTES AS TO WHETHER A
 MATTER IS IMPROPER FOR INCLUSION IN A SUPPLEMENTAL AGREEMENT SHALL BE
 RESOLVED BY ARBITRATION . . . "
 
    IN JANUARY 1979, MANAGEMENT OF THE ACTIVITY SOLICITED COMMENTS FROM
 THE UNION ON A POLICY STATEMENT CONCERNING THE ADMINISTRATION OF SICK
 LEAVE WHICH WAS INTENDED FOR PUBLICATION.  THE UNION RESPONDED BY
 IDENTIFYING FOUR PARAGRAPHS OF THE POLICY STATEMENT ON WHICH IT
 REQUESTED AN OPPORTUNITY TO NEGOTIATE, BUT DID NOT SET FORTH ANY
 SPECIFIC BARGAINING PROPOSALS.  THE ACTIVITY THEREAFTER ADVISED THE
 UNION THAT, " . . . BASED UPON . . . OUR INTERPRETATION OF THE ISSUES
 THAT ARE NEGOTIABLE AT THE LOCAL LEVEL, WE DO NOT BELIEVE THE (SICK
 LEAVE POLICY) ITEMS TO BE NEGOTIABLE." FURTHER EFFORTS BY THE UNION TO
 NEGOTIATE ON THE IDENTIFIED PARAGRAPHS WERE UNSUCCESSFUL, AND THE
 ACTIVITY ULTIMATELY IMPLEMENTED THE NEW SICK LEAVE POLICY.  THE UNION
 THEN FILED THE INSTANT NEGOTIABILITY APPEAL.  /1/
 
    IN ITS STATEMENT OF POSITION, THE AGENCY CONTENDS, INTER ALIA, THAT
 THE INSTANT NEGOTIABILITY APPEAL WAS PREMATURELY FILED, IN THAT IT
 INVOLVES A THRESHOLD QUESTION CONCERNING THE APPLICABILITY AND
 CONTROLLING EFFECT OF A HIGHER LEVEL AGREEMENT.  IN THIS REGARD, THE
 AGENCY ASSERTS THAT "THE TERMS OF THE MASTER AGREEMENT SUPPORT THE
 (AGENCY'S) VIEW THAT THE (UNION) WAS PRECLUDED BY CONTRACT FROM SEEKING
 TO NEGOTIATE THE SUBSTANCE OF THE POLICY STATEMENT CONTAINED (IN THE
 FOUR IDENTIFIED PARAGRAPHS);  AND, THUS, THAT THE UNDERLYING QUESTIONS
 CONCERNING THE CONTROLLING EFFECT OF (AGENCY REGULATIONS AND PROVISIONS
 OF THE FEDERAL PERSONNEL MANUAL) NEED NOT NECESSARILY BE REACHED BY THE
 AUTHORITY IF AN ARBITRATOR WERE TO AGREE WITH THE )AGENCY'S)
 CONSTRUCTION OF THE MASTER AGREEMENT." THE UNION ESSENTIALLY CONTENDS,
 ON THE OTHER HAND, THAT THE MASTER AGREEMENT EXPRESSLY CONTEMPLATES
 LOCAL BARGAINING CONCERNING THE PROVISIONS OF A POLICY STATEMENT WHICH,
 AS HERE, ARE INTENDED TO IMPLEMENT THE AGREEMENT AT THE LOCAL LEVEL AND
 COVER MATTERS MORE PRACTICABLY NEGOTIATED AT THE ACTIVITY LEVEL.  FOR
 THE REASONS SET FOR THE BELOW, THE AUTHORITY CONCLUDES, IN AGREEMENT
 WITH THE AGENCY, THAT THE INSTANT DISPUTE IS NOT PROPERLY BEFORE THE
 AUTHORITY FOR RESOLUTION.
 
    AS INDICATED ABOVE, THE PARTIES ARE ESSENTIALLY IN DISPUTE CONCERNING
 THE THRESHOLD QUESTION AS TO WHETHER OR NOT THE MASTER AGREEMENT
 NEGOTIATED AT THE NATIONAL LEVEL AUTHORIZES BARGAINING AT THE LOCAL
 LEVEL ON THE MATTER OF SICK LEAVE POLICY ADMINISTRATION.  IN THE
 AUTHORITY'S OPINION, SUCH THRESHOLD ISSUE IS NOT APPROPRIATE FOR
 RESOLUTION UNDER THE PROCEDURES SET FORTH IN SECTION 7117 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE AND PART 2424 OF THE
 AUTHORITY'S RULES AND REGULATIONS, WHICH PROCEDURES ARE DESIGNED TO
 RESOLVE WHETHER PARTICULAR UNION PROPOSALS ARE THEMSELVES
 NONNEGOTIABLE-- I.E., INCONSISTENT WITH LAW, RULE OR REGULATION.  /2/
 RATHER, TO THE EXTENT THAT THE INSTANT CASE INVOLVES A DISPUTE OVER THE
 MEANING OF PROVISIONS CONTAINED IN THE MASTER AGREEMENT, THE PROPER
 FORUM IN WHICH TO RESOLVE THE DISPUTE WOULD BE THAT WHICH THE PARTIES
 THEMSELVES HAVE ADOPTED FOR SUCH PURPOSE.  /3/
 
    IN A NEGOTIABILITY DISPUTE SUCH AS THE INSTANT CASE WHICH INVOLVES
 ISSUES BOTH AS TO THE INTERPRETATION OF A CONTROLLING AGREEMENT AND AS
 TO OTHER MATTERS ON WHICH NEGOTIABILITY QUESTIONS MAY AROSE, THERE ARE
 SOUND POLICY REASONS FOR REQUIRING THE PARTIES FIRST TO RESOLVE THE
 ISSUE INVOLVING THE INTERPRETATION OF THE CONTROLLING AGREEMENT.  FOR
 EXAMPLE, THE RESOLUTION OF THE ISSUE INVOLVING THE INTERPRETATION OF THE
 CONTROLLING AGREEMENT COULD RESULT IN A DETERMINATION THAT THE MATTER IN
 DISPUTE IS INCONSISTENT WITH THE PROVISIONS OF THE CONTROLLING
 AGREEMENT, THEREBY OBVIATING THE NEED FOR AN AUTHORITY DECISION UNDER
 SECTION 7117 OF THE STATUTE BY RENDERING MOOT THE NEGOTIABILITY ISSUES
 AND AVOIDING AN UNWARRANTED PROLIFERATION OF CASES BEFORE THE AUTHORITY.
  MOREOVER, WERE THE AUTHORITY TO DECIDE THAT A DISPUTED MATTER IS
 NEGOTIABLE WHILE AN ISSUE INVOLVING THE INTERPRETATION OF THE
 CONTROLLING AGREEMENT REMAINED TO BE RESOLVED, SUCH AUTHORITY DECISION
 WOULD LACK FINALITY.  /4/ THAT IS, A LATER DETERMINATION UNDER THE
 PROCEDURES OF THE PARTIES' CONTROLLING AGREEMENT THAT THE MATTER IS
 INCONSISTENT WITH THE CONTROLLING AGREEMENT WOULD BE DISPOSITIVE OF THE
 PARTIES' NEGOTIABILITY DISPUTE EVEN THOUGH THE AUTHORITY HAD PREVIOUSLY
 RULED THAT THE MATTER WAS NEGOTIABLE.
 
    CONSEQUENTLY, UNTIL THERE IS A RESOLUTION, UNDER THE PROCEDURES
 ESTABLISHED BY THE PARTIES, THAT THE CONTROLLING AGREEMENT DOES NOT
 PRECLUDE BARGAINING AT THE ACTIVITY LEVEL CONCERNING THE MATTER OF SICK
 LEAVE POLICY ADMINISTRATION, THE AUTHORITY WILL NOT DECIDE ANY RELATED
 NEGOTIABILITY ISSUES ARISING UNDER THE STATUTE PURSUANT TO ITS EXCLUSIVE
 RESPONSIBLITY AS SET FORTH IN SECTION 7105(A)(2)(E) OF THE STATUTE TO
 "RESOLVE ISSUES RELATING TO THE DUTY TO BARGAIN IN GOOD FAITH UNDER
 SECTION 7117(C) . . . " THAT IS, THE AUTHORITY FINDS THAT THE INSTANT
 APPEAL HAS BEEN PREMATURELY FILED AND THE CONDITIONS FOR REVIEW OF SUCH
 ISSUES PURSUANT TO SECTION 7117 OF THE STATUTE AND PART 2424 OF THE
 AUTHORITY'S RULES AND REGULATIONS HAVE NOT BEEN MET.
 
    ACCORDINGLY, AND APART FROM OTHER CONSIDERATIONS, THE UNION'S APPEAL
 IS HEREBY DENIED, WITHOUT PREJUDICE TO THE RENEWAL OF ITS CONTENTION
 THAT THE MATTERS IN DISPUTE ARE NEGOTIABLE UNDER THE STATUTE IN A
 PETITION DULY FILED WITH THE AUTHORITY AFTER IT IS RESOLVED, UNDER
 APPLICABLE PROCEDURES, THAT BARGAINING ON SUCH MATTERS IS NOT PRECLUDED
 BY THE CONTROLLING AGREEMENT.  /5/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    CC:  A.E. ROSS
 
    DOJ
 
                                 APPENDIX
 
    ARTICLE 9 - NEGOTIATIONS AT THE LOCAL LEVEL
 
    SECTION A.  IT IS UNDERSTOOD BY THE PARTIES TO THIS AGREEMENT THAT
 THIS IS THE MASTER AGREEMENT AND THAT ONLY A LOCAL SUPPLEMENTAL
 AGREEMENT IN ACCORDANCE WITH THIS ARTICLE MAY BE NEGOTIATED.
 
    SECTION B.  THE MASTER AGREEMENT IS GOVERNING AND CONTROLLING AT THE
 LOCAL LEVEL.  THE PURPOSE OF A LOCAL SUPPLEMENTAL AGREEMENT SHALL BE TO
 IMPLEMENT THE MASTER AGREEMENT AND COVER THOSE OTHER APPROPRIATE
 MATTERS
 WHICH ARE MORE PRACTICABLY NEGOTIATED AT THE LOCAL LEVEL.  IT SHALL NOT:
 
    (1) DEFINE MANAGEMENT RIGHTS.
 
    (2) RENEGOTIATE THOSE MATTERS NEGOTIATED AT THE NATIONAL LEVEL.
 
    (3) INCLUDE MATTERS NEGOTIATED AT THE NATIONAL LEVEL WHETHER OR NOT
 SUCH MATTERS HAVE BEEN INCORPORATED INTO THIS AGREEMENT.
 
    (4) INCORPORATE, DUPLICATE, OR PARAPHRASE ANY PROVISIONS OF A
 CONTROLLING LAW, REGULATION SIGNED AT A HIGHER LEVEL OR THIS AGREEMENT.
 
    (5) CONCERN A MATTER THAT IS NOT WITHIN THE DISCRETION OF THE
 EMPLOYER LOCALLY.
 
    (6) CONCERN A MATTER THAT IS NOT SUBJECT TO MANDATORY NEGOTIATIONS
 UNDER EXECUTIVE ORDER 11491, AS AMENDED.  EXCEPTIONS MAY BE GRANTED BY
 THE EMPLOYER AT THE NATIONAL LEVEL.
 
    SECTION C.  TO THE EXTENT THAT THEY ARE NOT ALREADY COVERED AND
 LIMITED BY THIS AGREEMENT AND TO THE EXTENT THAT THEY ARE IN ACCORDANCE
 WITH E.O. 11491, AS AMENDED, THE FOLLOWING MATTERS MAY BE NEGOTIATED
 LOCALLY AND INCLUDED IN ANY LOCAL SUPPLEMENTAL AGREEMENT:
 
   *          *          *          *
 
 
    (11) POLICY STATEMENTS AND OPERATIONS MEMORANDA WHICH EFFECT LOCAL
 WORKING CONDITIONS, PERSONNEL POLICIES, AND PRACTICES FOR MEMBERS OF THE
 UNIT EXCEPT THAT IN THOSE SITUATIONS NECESSITATING IMMEDIATE ISSUANCE,
 THE EMPLOYER IN ADVANCE OF SUCH ISSUANCE SHALL, IN GOOD FAITH, ENDEAVOR
 TO CONTACT THE UNION FOR THE PURPOSE OF NOTIFICATION AND CONSULTATION.
 OTHERWISE, THE UNION WILL HAVE UP TO SEVEN WORKING DAYS FOR REVIEW OF
 THE PROPOSED ISSUANCE AND SUB- MISSION OF THE UNION'S COMMENTS AND/OR
 REQUESTING NEGOTIATIONS.  IT IS UNDERSTOOD BY THE PARTIES THAT CHANGES
 IN THE EMPLOYER'S POLICY ISSUANCES WHICH AFFECT WORKING CONDITIONS OR
 PERSONNEL POLICIES AND PRACTICES FOR EMPLOYEES IN THE UNIT MAY NOT BE
 MADE THROUGH THE USE OF ORAL OR WRITTEN DIRECTIVES OUTSIDE OF THE
 EMPLOYER'S FORMAL POLICY ISSUANCE SYSTEM.
 
    (12) OTHER WORKING CONDITIONS AND PRACTICES WHICH ARE WITHIN THE
 DISCRETION OF THE EMPLOYER LOCALLY, AND WHICH HAVE NOT BEEN LIMITED OR
 EXCLUDED BY PROVISIONS OF THIS AGREEMENT.
 
    SECTION D.  IN ANY CASE WHERE A PROVISION OF A LOCAL SUPPLEMENTAL
 AGREEMENT CONFLICTS WITH ANY PROVISION OF THIS AGREEMENT, SUCH PROVISION
 WILL BE NULL AND VOID.
 
   *          *          *          *
 
 
    SECTION G.  ONCE AN AGREEMENT HAS BEEN REACHED AT THE LOCAL LEVEL IT
 SHALL NOT BE FINAL FOR THIRTY (30) DAYS FOLLOWING SIGNATURE OF THE
 PARTIES.  DURING THIS PERIOD THE PROPOSED AGREEMENT SHALL BE FORWARDED
 TO THE ASSISTANT DIRECTOR FOR CORRECTIONAL PROGRAMS FOR REVIEW TO
 DETERMINE IF THE PROPOSED AGREEMENT COMPLIES WITH THE PROVISIONS OF THIS
 AGREEMENT AND APPLICABLE LAWS AND REGULATIONS.  IF THE PROPOSED
 AGREEMENT CONFORMS WITH THE PROVISIONS OF THIS AGREEMENT AND APPLICABLE
 LAWS AND REGULATIONS, IT SHALL BE APPROVED.  DISPUTES AS TO WHETHER A
 MATTER IS IMPROPER FOR INCLUSION IN A SUPPLEMENTAL AGREEMENT SHALL BE
 RESOLVED BY ARBITRATION IN ACCORDANCE WITH ARTICLE 30.  AT THE END OF
 THIRTY (30) DAYS, THE PROPOSED AGREEMENT WILL TAKE EFFECT EXCEPT FOR ANY
 MATTERS IN DISPUTE WHICH WILL NOT BE EFFECTIVE UNTIL RESOLVED BY THE
 ARBITRATOR.
 
   *          *          *          *
 
 
    /1/ SHORTLY THEREAFTER, THE UNION ALSO FILED AN UNFAIR LABOR PRACTICE
 CHARGE WITH THE AUTHORITY'S BOSTON REGION WHICH ALLEGED THAT THE
 ACTIVITY'S IMPLEMENTATION OF THE POLICY VIOLATED SECTION 7116(A)(5) AND
 (8) OF THE STATUTE.  THE UNFAIR LABOR PRACTICE PROCEEDING IS CURRENTLY
 PENDING.
 
    /2/ IN THIS REGARD, SEC. 2424.1 OF THE AUTHORITY'S RULES AND
 REGULATIONS (44 FED. REG. 44765(1979)), WHICH SETS FORTH CONDITIONS
 GOVERNING REVIEW OF NEGOTIABILITY ISSUES, STATES IN PERTINENT PART AS
 FOLLOWS:
 
    THE AUTHORITY WILL CONSIDER A NEGOTIABILITY ISSUE UNDER THE
 CONDITIONS PRESCRIBED BY 5 U.S.C. 7117(B) AND (C), NAMELY:  IF AN AGENCY
 INVOLVED IN COLLECTIVE BARGAINING WITH AN EXCLUSIVE REPRESENTATIVE
 ALLEGES THAT THE DUTY TO BARGAIN IN GOOD FAITH DOES NOT EXTEND TO ANY
 MATTER PROPOSED TO BE BARGAINED BECAUSE, AS PROPOSED, THE MATTER IS
 INCONSISTENT WITH LAW, RULE OR REGULATION, THE EXCLUSIVE REPRESENTATIVE
 MAY APPEAL THE ALLEGATION TO THE AUTHORITY WHEN --
 
    (A) IT DISAGREES WITH THE AGENCY'S ALLEGATION THAT THE MATTER AS
 PROPOSED TO BE BARGAINED
 
    IS INCONSISTENT WITH ANY FEDERAL LAW OR ANY GOVERNMENT-WIDE RULE OR
 REGULATION . . . .
 
    /3/ IN THIS CONNECTION, IT IS NOTED THAT SECTION 7114(C)(4) OF THE
 STATUTE PROVIDES:
 
    A LOCAL AGREEMENT SUBJECT TO A NATIONAL OR OTHER CONTROLLING
 AGREEMENT AT A HIGHER LEVEL
 
    SHALL BE APPROVED UNDER THE PROCEDURES OF THE CONTROLLING AGREEMENT
 OR, IF NONE, UNDER
 
    REGULATIONS PRESCRIBED BY THE AGENCY.
 
    /4/ IN THIS REGARD, SEC. 2429.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (44 FED. REG. 44771) PROVIDES THAT "(T)HE AUTHORITY . . .
 WILL NOT ISSUE ADVISORY OPINION."
 
    /5/ IN SO CONCLUDING, HOWEVER, THE AUTHORITY REITERATES THAT THE
 UNION, IN REQUESTING NEGOTIATIONS CONCERNING CERTAIN PARAGRAPHS OF THE
 ACTIVITY'S PROPOSED POLICY STATEMENT ON SICK LEAVE ADMINISTRATION, DID
 NOT SET FORTH ITS POSITION IN ANY SPECIFIC PROPOSALS.  IF MATTERS
 PROPOSED TO BE NEGOTIATED ARE NOT SPECIFICALLY DELIMITED AND
 ARTICULATED, IT IS FREQUENTLY DIFFICULT IF NOT IMPOSSIBLE FOR THE
 AUTHORITY TO RENDER A NEGOTIABILITY DETERMINATION PURSUANT TO SECTION
 7117 OF THE STATUTE THAT WOULD BE OF ASSISTANCE BOTH TO THE PARTIES AND
 THE PUBLIC.  IN THIS REGARD, AS PREVIOUSLY NOTED (SUPRA N. 2), SEC.
 2424.1 OF THE AUTHORITY'S RULES AND REGULATIONS SPEAKS IN TERMS OF "THE
 MATTERS AS PROPOSED TO BE BARGAINED."