23:0224(29)NG - AFGE, Council of Prisons Locals, Local 171 and Justice, Federal Prison System, Federal Correctional Institution, El Reno, OK -- 1986 FLRAdec NG
[ v23 p224 ]
The decision of the Authority follows:
23 FLRA No. 29 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF PRISONS LOCALS, LOCAL 171 Union and DEPARTMENT OF JUSTICE, FEDERAL PRISON SYSTEM, FEDERAL CORRECTIONAL INSTITUTION, EL RENO, OKLAHOMA Agency Case No. 0-NG-1172 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority on a petition for review of negotiability issues filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The petition seeks review of the disapproval of a number of provisions in the parties' local supplemental agreement during review of that agreement by the Agency head pursuant to section 7114(c) of the Statute. II. Procedural Issues The Agency argues that the Union's petition for review was untimely filed and that it is otherwise procedurally defective because the Union did not serve a copy of the petition on the Agency head and did not attach a copy of management's declaration of negotiability to the petition filed with the Authority. The Agency moves that the petition be dismissed on those procedural grounds. The Authority has determined, however, that the Union's petition was timely filed under the Authority's Rules and Regulations and that any other procedural deficiencies were corrected by the Union upon notification and within the time provided by the Authority for such corrective action. Accordingly, the Agency's motion to dismiss the appeal is denied. In addition, the Authority will not consider the Union's petition regarding Article 18, Section E of the parties' agreement since the Agency states that it did not disapprove that provision. Likewise, the Authority will not consider the Union's petition regarding Article 27, Section A since the Union withdrew its petition for review as to that provision. III. Provision 1 Article 18 -- Assignment and Hours of Work Section C: Any institutional department finding it necessary to pay overtime will give first consideration for overtime work to employees within the department, then to other qualified employees of the institution. A. Positions of the Parties In its disapproval of the provision, the Agency declared that the language was negotiable only if management retained the authority to make final determinations as to the qualifications required to perform overtime work and if the provision did not preclude management from assigning work to employees in other departments on a non-overtime basis. In its petition for review, the Union states that the provision allows management to unilaterally determine the qualifications needed to perform work and to assign work to any employee, regardless of department, consistent with the "first consideration" for overtime work requirement of the provision. The Union further argues that the provision does not pertain to non-overtime work and, therefore, that it does not preclude management from acting in any way with respect to non-overtime work assignments. In its statement of position concerning the Union's petition, the Agency acknowledges that, in view of the Union's interpretation of the disputed provision, its objection to the provision based on the Agency's concern for ensuring management's right to determine qualifications for performing work is now moot. However, the Agency continues to maintain that it is not clear whether the provision is intended to preclude management from assigning work to employees in other departments during regular duty hours. The Agency argues that, if the provision is so intended, then it is nonnegotiable because it would interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. B. Analysis and Conclusions The agreement provision disapproved by the Agency head expressly deals with overtime work. Moreover, as clearly and unequivocally interpreted by the Union, which interpretation is consistent with the plain language of the provision, the provision in no manner prevents management from assigning work to employees in other departments during regular duty hours. The Authority therefore concludes that the provision does not interfere with management's rights under section 7106(a)(2)(B) of the Statute and that it is within the duty to bargain. IV. Provision 2 Article 18 -- Assignment and Hours of Work Section H: The principal day shift hours of work will be 7:30 AM to 4:00 PM with a half hour uninterrupted lunch period. A. Positions of the Parties The Agency's position essentially is that the provision concerns a permissive subject of bargaining under section 7106(b)(1) of the Statute and that the parties' National Controlling Agreement prohibits local supplemental bargaining on such permissive subjects. In support of its position, the Agency relies on the Authority's decision in Department of the Air Force, Lowry Air Force Base, Colorado, 16 FLRA 1104 (1984), and argues that since the provision concerns the hours of the day shift, the shift when most of the institution's offices are open and business and activities are conducted, the provision would have the effect of determining the numbers, types and grades of employees assigned to a tour of duty, a matter covered by section 7106(b)(1), which is negotiable only at management's election. The Agency also states that if the provision simply requires the Union to be informed of any proposed change in existing day shift hours and given an opportunity to bargain on the impact and implementation of such a change, the provision is negotiable. The Union argues that the provision simply describes the principal day-shift hours at the institution; that it does not establish a shift or tour of duty within the meaning of section 7106(b)(1) of the Statute; that it does not limit management from conducting any business on any shift; and that it does not preclude the employer from adjusting the shift or establishing a new one so long as the rights of the exclusive representative are respected. The Union therefore maintains that there is no section 7106(b)(1) issue presented by the provision and that the Authority's decision in Lowry is not applicable in this case. Moreover, the Union argues that even if the provision concerns a permissive subject of bargaining under section 7106(b)(1), since the local parties bargained and agreed upon the provision, management was thereafter precluded from asserting any section 7106(b)(1) arguments as a basis for disapproving the provision during review of the agreement under section 7114(c) of the Statute.