U.S. Federal Labor Relations Authority

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11:0286(63)NG - AFGE, Council of Prison Locals and Justice, Bureau of Prisons -- 1983 FLRAdec NG

[ v11 p286 ]
The decision of the Authority follows:

 11 FLRA No. 63
                                            Case No. O-NG-550
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents issues
 relating to the negotiability of the following two provisions contained
 in a locally executed agreement which were disapproved as not being in
 accordance with applicable laws, rules or regulations by the Agency head
 upon review pursuant to section 7114(c) of the Statute.  /1/ Upon
 careful consideration of the entire record, including the parties'
 contentions, the Authority makes the following determinations.
                                Provision 1
    Article 23, Section (e):
          The Central Office, Regional Offices and each institution will
       have one to six employees, that is:  between 3% and 5% of the
       number of eligible employees locally, involved in the Upward
       Mobility Program at any one time.
    In National Treasury Employees Union and Internal Revenue Service, 2
 FLRA 281 (1979), the Authority held that a proposal requiring the agency
 to "fill" certain percentages of available vacancies as upward mobility
 positions directly interfered with management's right to assign
 employees under section 7106(a)(2)(A).  In the instant case, the Agency
 contends that the provision would require the Agency to select a certain
 percentage of a specific group of current employees and thus would
 require the Agency to fill a certain percentage of vacancies with such
 employees.  The language of the provision is consistent with this
 interpretation, and the Union does not dispute it.  So interpreted, the
 provision is substantively identical to the proposal in Internal Revenue
 Service, and, for the reasons stated therein, Provision 1 herein is also
 outside the duty to bargain under section 7106(a)(2)(A) of the Statute.
 Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review as to Provision
 1 be, and it hereby is, dismissed.
                                Provision 2
    Article 27, Section (a):
          The Employer and Union shall be responsible for the
       establishment and maintenance of an effective and comprehensive
       Occupational Safety and Health Program to comply with all
       standards of Executive Order 12196, dated February 26, 1980.
    Article 27, Section (g):
          The Employer at each institution shall establish a Health and
       Safety Committee in accordance with the provisions of Executive
       Order 12196.  Committees will be composed of equal numbers of
       management and non-management representatives.  Non-management
       committee members will be designated by the local union.
    The Agency contends that this provision is nonnegotiable solely "to
 the extent that (the) two sections purport to establish a 'certified'
 Health and Safety Committee as authorized by Executive Order 12196." /2/
 Based on the record, a certified committee is one which is part of a
 system of committees established pursuant to the Order and conforming to
 applicable regulations of the Department of Labor.  /3/ Such committees
 can be certified by the Secretary of Labor and, if certified, would have
 the effect among others of exempting the Agency from unannounced
 inspections by the Occupational Safety and Health Administration.  The
 Union, however, states that the provision was intended to establish only
 "uncertified" health and safety committees.  In this regard, the Agency
 concedes that the Executive Order does not prohibit the establishment of
 committees which are not certified and, further, that the establishment
 of uncertified committees is within the duty to bargain.
    The Authority finds, contrary to the Agency's contention, that the
 provision would not require the establishment of "certified" committees.
  Insofar as appears from the record, consistent with the general
 language of the provision, the Union intended only the establishment of
 uncertified health and safety committees at the level of bargaining.
 Thus, based upon the Union's interpretation, no part of the Executive
 Order which is concerned with either the obtaining of certification or
 results of certification would be applicable under the disputed
 provision.  Rather, the provision would only require that the committees
 be "in accordance with" the Order as regard those parts which are not
 concerned with certification, e.g., the composition and some functions
 of such committees.  Hence, the contractual committees would not be part
 of a certified system:  They would not have the effect of exempting the
 Agency from unannounced inspections, as previously mentioned, and they
 would not be empowered to request, pursuant to section 1-303 of the
 Order, an evaluation or inspection by the Secretary of Labor.
 Therefore, the Agency's allegation cannot be sustained.  Furthermore,
 the provision does not appear otherwise to be outside the duty to
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall rescind the disapproval
 of this provision which was bargained on and agreed to by the parties at
 the local level.  /4/ Issued, Washington, D.C., February 10, 1983
                                       Ronald W. Haughton, Chairman
                                       Henry B. Frazier III, Member
                                       Leon B. Applewhaite, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ The appeal as originally filed included an additional provision
 (designated as Article 31, Section f).  Subsequently, the Union
 requested that the Authority permit it to withdraw its appeal concerning
 that provision.  The Union's request is hereby granted without passing
 upon the Union's reason for requesting withdrawal.
    /2/ Executive Order 12196-- Occupational safety and health programs
 for Federal employees, provides in relevant part:
          1-3.  Occupational Safety and Health Committees.
          1-301.  Agency heads may establish occupational safety and
       health committees.  If committees are established, they shall be
       established at both the national level and, for agencies with
       field or regional offices, other appropriate levels.  The
       committees shall be composed of representatives of management and
       an equal number of nonmanagement employees or their
       representatives.  Where there are exclusive bargaining
       representatives for employees at the national or other level in an
       agency, such representatives shall select the appropriate
       nonmanagement members of the committee.
          1-302.  The committees shall, except where prohibited by law,
          (a) Have access to agency information relevant to their duties,
       including information on the nature and hazardousness of
       substances in agency workplaces.
          (b) Monitor performance, including agency inspections, of the
       agency safety and health programs at the level they are
          (c) Consult and advise the agency on the operation of the
          1-303.  A Committee may request the Secretary of Labor to
       conduct an evaluation or inspection pursuant to this order if half
       of a Committee is not substantially satisfied with an agency's
       response to a report of hazardous working conditions.
    /3/ 29 CFR Part 1960 (1981).
    /4/ In so deciding, the Authority, of course, makes no judgment as to
 the merits of the provision.