31:0037(9)NG - AFGE Local 2052 and Justice, Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia -- 1988 FLRAdec NG

[ v31 p37 ]
The decision of the Authority follows:

 31 FLRA NO. 9
 31 FLRA 37

        10 FEB 1988






Case No. 0-NG-1401


     I. Statement of the Case

     This case is before the Authority because of a negotiability
petition filed by the Union under section 7105(a)(2)(D) of the
Federal Service Labor - Management Relations Statute (the
Statute). The petition concerns seven Union proposals.

     For the reasons discussed below, we find that five of the
proposals are not properly before us. The petition is dismissed
as to these proposals, without prejudice to the Union's right to
file a petition concerning them in the future, if the conditions
for review under part 2424 of our Regulations are met. The
remaining proposals concern (1) the extent to which collective
bargaining agreements will take precedence over the provisions of
conflicting Agency regulations, and (2) employees' rights to
refuse orders which would require then to violate law. We find
that these proposals are within the duty to bargain.

     II. Threshold Issues

     The Agency and Union were engaged in the negotiation of a
local supplemental agreement on October 27 and 28, 1986. During
negotiations, Agency representatives alleged that a number of
proposals were nonnegotiable. The Union representative requested
the Agency representative to initial those proposals which
the Agency alleged were nonnegotiable. The Union representative
also initialed the results of the negotiations, including the
reasons for declaring the proposals nonnegotiable, and forwarded
the information to the Union. On a later date, the Agency
received a letter from the Union requesting allegations of
nonnegotiability of the proposals. The Agency responded by
advising the Union that the Union had been advised of the
Agency's allegations of nonnegotiability at the conclusion of the

     A. Position of the Parties

     The Agency argues in a Motion to Dismiss that the Union's
petition for review is not properly before the Authority because
it was untimely filed. The Agency asserts that the Union's
request for the Agency to initial those proposals which the
Agency had orally declared nonnegotiable was sufficient to meet
the Authority's requirement for a "written" request as a
prerequisite for a negotiability appeal. The Agency also argues
that the petition should be dismissed as to certain proposals
because these proposals conflict with a controlling national

     The Union disputes the Agency's arguments and asserts that
its petition complies with the Authority's Regulations governing
negotiability appeals.

     B. The Petition Is Timely

     Contrary to the Agency's arguments in its Motion to Dismiss,
the Union's petition is not untimely. Under section 2424.3 of our
Regulations, a union has the right to file a negotiability
petition when it receives written allegations which were not
requested by the union. See, for example, American Federation of
Government Employees, National GSA Council (No. 236), Local 1496
and General Services Administration, Region 3, 24 FLRA  928, 929
(1986). However, a union is not required to file a petition in
such circumstances in order to preserve its right to appeal.

     A union also may initiate the appeals process by, serving a
written request for allegations on the agency on a later date.
Id. If the agency does not provide the requested allegations, the
union may file a petition which is not subject to the time limits
in section 2424.3 of our Regulations. For example, American
Federation of Government Employees, AFL - CIO, Local 2494 and
Strategic Weapons Facility Pacific, Bremerton, Washington, 7 FLRA
590, 591 n.2 (1982). 

     This is what occurred here. Although the Agency provided the
Union with written allegations of nonnegotiability months prior
to the Union's petition, the record indicates that these
allegations were not provided in response to a written Union
request. The Union did not appeal from these allegations. On a
later date the Union, in writing, requested the Agency's
allegations. The Agency's response did not include the requested
allegations. Since a petition for review is not subject to the
time limits of section 2424.3 in these circumstances, this Union
petition is not untimely. We decline to change this long-standing
practice as requested by the Agency.

     C. Two Union Proposals Are Properly Before Us

     The Union's petition references seven proposals. The Agency
claims that the petition should be dismissed as to all but one of
the proposals because the negotiation of these proposals is
barred by a controlling national agreement.

     We reject this claim. A union is entitled to a decision on
negotiability issues under part 2424 of our Regulations if the
parties are in dispute over whether the union's proposals are
inconsistent with law, rule, or regulation, and the union's
petition is otherwise procedurally correct. It is entitled to a
decision despite the claimed existence of additional
duty-to-bargain issues, for example, the Agency's assertion that
the negotiation of the Union's proposals is barred by a
controlling national agreement. American Federation of Government
Employees, Local 12, AFL - CIO and Department of Labor, 26 FLRA 
768, 769 (1987). Additional issues regarding the duty to bargain
should be resolved in other appropriate proceedings. Id.

     However, the Agency's only contention as to four Union
proposals--which are referenced in the petition as proposals 1,
2, 3, and 5--is that the proposals conflict with the national
agreement. Agency Statement of Position at 5. The Union does not
dispute this contention. Accordingly, we find that these
proposals are not properly before us under part 2424 of our
Regulations. Id. We will consider petitions concerning
negotiability issues only where the parties are in dispute as to
whether a proposal is inconsistent with law, rule, or

     Finally, we find that the petition also should be dismissed
as to one of the remaining three proposals. As referenced in the
Union's petition, proposal 7, which concerns the Agency's "use of
recording devices," contained three sentences. In its response,
the Union has requested  that its petition be withdrawn
as to two of these sentences and has reworded the third sentence.
Union Response at 27-28. In our opinion the new wording changes
the meaning ofthe proposal. Based on the record, the Union has
not requested an allegation concerning this wording and the
Agency has not had the opportunity to respond to such a request
as provided under part 2424 of our Regulations. For these
reasons, the petition for review must also be dismissed as to
this proposal.

     III. Proposal 1

     Article II, Governing Laws and Regulations, Section 2.

     Agency Regulations

     Where any agency regulation conflicts with this agreement or
other negotiated agreements, the Agreements shall govern.

     A. Positions of the Parties

     The Agency argues that the petition should be dismissed as
to this proposal because the Union's explanation of the
proposal--that its requirements only apply to Agency regulations
which postdate negotiated agreements--is inconsistent with the
proposal's plain meaning.

     The Agency also maintains that the proposal is nonnegotiable
because: (1) it would interfere with the exercise of management's
rights under section 7106 of the Statute when such rights are
exercised by way of Agency regulations; and (2) it would prevent
the Agency from exercising its right to object to Union proposals
in negotiations, or provisions agreed to by local parties, on the
ground that the proposals or the locally negotiated provisions
conflict with Agency regulations for which a compelling need
exists under section 7117(a)(2) of the Statute.

     The Union maintains that the purpose of the proposal is to
prevent the Agency from issuing regulations which conflict with
"the Agreement." Union Response at 3. The Union argues that the
proposal is negotiable because it merely parallels the
requirements of section 7116(a)(7) of the Statute. 

     B. Analysis and Conclusion

     Based on its plain wording, this proposal would require that
collective bargaining agreements take precedence over conflicting
provisions in Agency regulations which predate, as well as those
which postdate, agreements. Although the Union's explanation is
inconsistent with the proposal's wording, we are able to provide
a negotiability determination because the meaning of the proposal
is plain and its implications are clear relative to the
requirements of applicable law, rules, and regulations. We do not
rely on the Union's explanation. See American Federation of
Government Employees, AFL - CIO, Local 1858 and U.S. Army Missile
Command, The U.S. Army Test, Measurement, and Diagnostic
Equipment Support Group, The U.S. Army Information Systems
Command - Redstone Arsenal Commissary, 27 FLRA  69, 79-80 (1987),
petition for review filed as to other matters sub non. U.S. Army
Missile Command v. FLRA,  No. 87-7445 (11th Cir. July 17,

     In American Federation of Government Employees, AFL - CIO,
Local 1458 and U.S. Department of Justice, Office of the U.S.
Attorney, Southern District of Florida, 29 FLRA  3, 7-8 (1987)
(Provision 2) we held that a provision which would subordinate to
the negotiated agreement any conflicting agency regulations was
negotiable. Insofar as that provision applied to agency
regulations which predated the agreement, we found that the
provision merely required the agency to meet its burden of
establishing the compelling need for its regulations when a
conflicting proposal was at issue. We also found that the
provision was negotiable insofar as it applied to agency
regulations issued after the effective dates of agreements
because it was consistent with section 7116(a)(7) of the Statute,
which provides that subsequently, issued rules and regulations,
with one statutory exception, cannot invalidate terms of a
preexisting negotiated agreement.

     The requirements of this proposal duplicate the requirements
of the provision in Southern District, 29 FLRA  3, 7-8 (1987).
Therefore, for the reasons explained in Southern District, we
find that this proposal is negotiable. See also International
Plate Printers, Die Stampers and Engravers Union of North
America, AFL - CIO, Local 2 and Department of the Treasury,
Bureau of Engraving and Printing Washington, D.C., 25 FLRA  113
(1987) (Provision 1).

     The Agency's argument that this proposal would interfere
with the exercise of management's rights under section 7106(a)
cannot be sustained. Proposals which conflict with those rights
are not negotiable, and provisions in collective
bargaining agreements which conflict with those rights are not
enforceable. See, for example, United States Department of
Transportation, Federal Railroad Administration and American
Federation of Government Employees, Local 2814, 15 FLRA  401, 402
(1984), where the Authority found that an arbitrator's award may
not interpret or enforce a provision of a collective bargaining
agreement to deny the authority of an agency to exercise its
statutory rights under section 7106(a). Accordingly, the Agency
may assert that a union provision or an arbitrator's award
violates its rights. In connection with this proposal, the
Agency's objection under section 7106(a) constitutes speculation.
Nothing in Proposal 1 prevents the Agency from asserting a
violation of its rights in the future.

     For these reasons we conclude that the proposal would not
affect the exercise of management's rights under section 7106 of
the Statute as contended by the Agency and is therefore

     IV. Proposal 2

     Article III, Personal Rights, Section 2

     Unlawful Orders

     Employees have the right to refuse orders that would require
the employees to violate law.

     A. Positions of the Parties

     The Agency asserts that this proposal would preclude
supervisors and management officials from instructing employees
to engage in actions which would violate Federal and state
criminal laws. The Agency maintains that the proposal is
nonnegotiable because (1) it covers matters (criminal law
violations) which are outside the definition of "conditions of
employment" under section 7103(a)(12) and (14) of the Statute,
and (2) its implementation would require decisions (applying
Federal and state criminal laws) which are beyond the powers
provided arbitrators and the Authority under section 7121(a) of
the Statute.

     The Union asserts that the proposal is negotiable. It argues
that management does not have the right to require an employee to
violate the law.

     B. Analysis and Conclusion

     This proposal is within the duty to bargain. The Authority
has held, consistent with section 7106(a)(2) of the Statute, that
management must exercise its reserved rights under that section
in accordance with applicable laws. See, for example, Newark Air
Force Station and American Federation of Government Employees,
Local 2221, 30  FLRA  No. 76, slip op. a 16-19 (1987) (exercising
the rights to direct and assign work to employees when
establishing performance standards and critical elements);
American Federation of Government Employees, AFL - CIO,
International Council of U.S. Marshals Service Locals and
Department of Justice, U.S. Marshals Service, 11 FLRA  672,
676-78 (1983) (Proposal 4) (exercising the right to discipline
and assign work in connection with employee reassignments).
Proposal 2 merely requires management to exercise its rights to
give direction to employees in accordance with law.

     We reject the Agency's contentions that this proposal is not
concerned with conditions of employment. The proposal concerns
Agency directions to unit employees which derive solely from the
employment relationship. Therefore, the proposal is concerned
with conditions of employment within the meaning of section
7103(a)(14) of the Statute. Antilles Consolidated Education
Association and Antilles Consolidated School System, 22 FLRA 
235, 236-37 (1987). Further, section 7103(a)(14)(A) - (C) does
not exclude the matters covered by this proposal from the
definition of conditions of employment.

     We also reject the Agency's contention that the proposal is
nonnegotiable because its implementation may require arbitrators
to interpret or apply criminal laws when resolving grievances.
Section 7103(a)(9) of the Statute defines the subjects which may
be covered under negotiated grievance procedures to include "any
claimed violation, misinterpretation, or misapplication of any
law, rule, or regulation affecting conditions of employment"
(emphasis added) as well as complaints "concerning any matter
relating to the employment of the employee." Disputes concerning
the application of this proposal plainly would fall within this
expansive definition.

     Further, nothing in the Statute or the legislative history
indicates that the phrase "any law" excludes criminal laws.
Accordingly, we cannot conclude that Congress inte