[ v11 p286 ]
The decision of the Authority follows:
11 FLRA No. 63 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF PRISON LOCALS Union and DEPARTMENT OF JUSTICE, BUREAU OF PRISONS Agency Case No. O-NG-550 DECISION AND ORDER ON NEGOTIABILITY ISSUES 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 bargain. 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 established. (c) Consult and advise the agency on the operation of the program. 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.