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



[ v02 p412 ]
02:0412(56)NG
The decision of the Authority follows:


 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