[ v45 p391 ]
The decision of the Authority follows:
45 FLRA No. 31
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case concerns the negotiability of three provisions that were negotiated by the Union and the Immigration and Naturalization Service (INS), and were disapproved by the Agency head under section 7114(c) of the Statute.l/ The Agency filed a statement of position and the Union filed a reply brief.
Provision 1 concerns the grant of official time to Union officials for various activities, including representation at statutory appeal procedures and preparation of unfair labor practice charges. We find that Provision 1 is negotiable.
Provision 3 provides that, in certain circumstances, the Agency may be responsible for the acts of its managers and supervisors who engage in sexual harassment. We conclude that Provision 3 is negotiable.
Provision 4 sets forth a procedure for reopening the agreement to negotiate over five proposals that were not agreed to by the parties during bargaining. We find that this provision is nonnegotiable because it is inconsistent with the 15-day time period for filing negotiability appeals under section 7117(c)(2) of the Statute.
II. Background and Preliminary Matters
The parties completed negotiations for a new master agreement on May 16, 1990. The agreement was reviewed by the Agency head pursuant to section 7114(c) of the Statute. Portions of the agreement were disapproved on June 15, 1990, on the basis that they were not in accordance with applicable law, rule, or regulation. Included in the disapproval letter was a discussion of Provision 4, denominated Article 52 in the agreement, which set forth a procedure for reopening the agreement with regard to five proposals that had not been agreed to by the parties during bargaining. On July 6, 1990, the Union filed the instant petition for review, which included, among other matters, Article 52 and the proposals contained therein.
Both parties have raised procedural issues in this proceeding. The Agency argues that the proposals contained in Provision 4 are not properly before the Authority. The Union claims that the Agency head's disapproval was procedurally defective. The Agency's procedural contention will be addressed in Section V of this decision.
As to the Union's claim, the Union contends that the Agency head's disapproval is deficient "because it fails to provide the express language alleged to be outside the obligation to bargain[.]" Petition for Review at 2. The Union explains that the Agency referred only to portions of the provisions that were agreed to by the parties, thereby failing to sufficiently identify the provisions so as to permit an analysis of their negotiability. The Union also asserts that the Agency head misquoted the language of Provision 1 and, instead, identified language that does not appear in the executed agreement. Therefore, according to the Union, the Agency head review action was "without effect . . . ." Response at 3. The Union also states that it "does not contest that the Authority has previously interpreted the Statute to permit nonspecificity when disapproving executed agreements." Id. However, in this case, the Union claims that its ability to proceed with a negotiability appeal was "directly compromised when the employer fail[ed] to correctly identify what was disapproved." Id. The Union also argues that because the Agency head misidentified the disputed language in Provision 1, there was no proper disapproval of that provision.
The Agency refutes the Union's assertion that the Agency's references to the contractual language it disapproved were "'fragmentary and inaccurate . . . .'" Statement of Position at 3 (quoting Petition for Review at 1.) The Agency argues that, by quoting only the parts of the various paragraphs it identified as nonnegotiable, it did not impair the Union's ability to identify the portions of the provisions it had disapproved. The Agency asserts, for example, that the Union had the entire wording of Provision 1 available to it for reference and the Agency had identified the subparagraphs from which it quoted disapproved language. Thus, the Agency argues that by reference to the appropriate provision the Union was able to discern exactly which portions of the provision were declared nonnegotiable. The Agency admits, however, that its disapproval of subparagraph 2, section A of Provision 1 "could have been more precise." Id. at 4. It asserts, though, that this lack of precision did not hinder the Union from identifying the disputed language and addressing its negotiability. The Agency also argues that there is no requirement in the Statute or the Authority's Rules and Regulations that an agency head disapproval be made with any specificity. In this regard, the Agency notes that the Authority held in Department of the Interior, National Park Service, Colonial National Historical Park, Yorktown, Virginia, 20 FLRA 537 (1985) (Department of the Interior), aff'd sub nom. National Association of Government Employees, Local R4-68 v. FLRA, 802 F.2d 1484 (4th Cir. 1986), that "'[t]he only requirement that an agency support its allegation of nonnegotiability with specificity and rationale occurs after the agency has been served with a petition for review[.]'" Id. at 6 (quoting Department of the Interior at 541). Consequently, the Agency argues that the Union's objection to the method it used to identify disputed language is "irrelevant at this stage of the section 7117(c) appeal procedure." Id.
We find that the Agency head's disapproval is not deficient. As both parties acknowledge, there is no requirement in the Statute or the Authority's Rules and Regulations that a disapproval of a locally executed agreement be made with any particular degree of specificity. Rather, the only requirement that an agency support its allegations of nonnegotiability with specificity and rationale occurs after the agency has been served with a petition for review, at which time the agency has 30 days within which to file a statement of position, specifying its reasons for its allegations. National Federation of Federal Employees and Department of the Interior, Bureau of Land Management, 29 FLRA 1491, 1513 (1987), enforced in part and reversed in part as to other matters sub nom. Department of Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505 (D.C. Cir. 1989). In this case, the Agency filed a statement of position that delineated the specific wording of the provisions claimed to be nonnegotiable and the rationale supporting its claims. The Union had ample opportunity to respond to the Agency's arguments by filing a response to the Agency's statement of position and did, in fact, do so.
III. Provision 1
ARTICLE 7 -[USE OF OFFICIAL TIME]
A. Upon request, and approval in advance, Union officials may use official time to conduct representational functions where such is authorized pursuant to, and consistent with, applicable statutes, regulations, and executive orders relating to complaints, grievances, appeals and other matters involving dealings with Service officials. Official time for representational functions performed by Union officers and stewards will be authorized for:
1. Representation in grievances, discrimination complaints and appeals.
2. To prepare and present grievances under the N[egotiated] G[rievance] P[rocedure]
including allegations of discrimination, the Local representative may be authorized up to a maximum of eight (8) hours of official time for this purpose. After arbitration has been invoked in accordance with Article 48, if a Local representative is designated to present the grievant's case, he will be authorized twenty-four (24) hours to prepare for arbitration. To prepare a ULP charge, the Local representative may be authorized up to a maximum of four hours. Prior to filing an unfair labor practice charge with the Federal Labor Relations Authority, Union representatives will make a good faith effort to discuss the complaint with local managers.
Union officials shall not knowingly file a grievance or a ULP charge concerning implementation of a policy or procedure agreed to by the Council President and Management at the national level.
. . . .
4. For representation at arbitrations and statutory appeal hearings.
. . . .
9. To act as a technical advisor or assistant employee representative in hearings. There shall be a limit of one representative so designated at a proceeding.
[Only the underlined portions of this provision are in dispute.]
A. Positions of the Parties
The Agency states that, as explained by the Union during bargaining, the disputed portions of the provision are not limited to providing official time to Union officials for arbitration or Authority proceedings or for meetings with management. Instead, the provision is intended to provide official time for a Union official to act as a representative or technical advisor for an employee who has elected, under section 7121(e) of the Statute, to use the appellate procedures of the Merit Systems Protection Board (MSPB) to contest an adverse action, rather than the parties' negotiated grievance procedure. The Agency asserts that section 7131(d) of the Statute provides that official time will be granted only to an employee representing an exclusive representative or to an employee "'in connection with any other matter covered by this chapter[.]'" Statement of Position at 15 (emphasis omitted). The Agency argues that a Union official acting as an employee's personal representative under section 7121(e) of the Statute is neither engaged in "'representing the exclusive representative'" nor involved with "'any other matter covered by this chapter '" for the purpose of granting official time under section 7131(d) of the Statute. Id. The Agency cites Reid v. Department of Commerce, 793 F.2d 277, 283 (Fed. Cir. 1986) (Reid), National Treasury Employees Union v. FLRA, 800 F.2d 1165 (D.C. Cir. 1986) (NTEU), and various Authority decisions to support its view that although a union official can serve as a personal representative of an employee at an MSPB hearing, there is no statutory entitlement for that official to represent the employee on behalf of the exclusive representative. Consequently, the Agency argues that, as the Union official would not be serving in a representative capacity, there would not be a basis on which to grant official time in connection with MSPB hearings.
The Agency also argues that the provision contravenes 5 U.S.C. § 1204(h)2/, which gives the MSPB, and not the Authority or the parties to a negotiated agreement, "the exclusive right to determine when it is necessary for employees to be granted paid time in connection with [MSPB] proceedings." Statement of Position at 19. The Agency notes that under the pertinent MSPB regulation, specifically 5 C.F.R. § 1201.33, official time can be granted to employees only when they are called to give sworn statements or testimony in MSPB proceedings and not when they are acting as personal representatives, assistants, or technical advisors to employees in such proceedings.
The Agency further claims that subparagraph (2) of Provision 1, which grants 4 hours of official time to prepare an unfair labor practice (ULP) charge, is contrary to section 7131(c) and (d) of the Statute. In this regard, the Agency asserts that a ULP charge can be filed by any "person," including individuals. As such, the Agency claims that a charge would not necessarily be filed by a Union official acting for the exclusive representative. The Agency argues that the parties are not authorized to negotiate official time for Union officers under section 7131(d)(1) of the Statute for the sole purpose of filing ULPs because "it is not a function which can only be performed by the exclusive representative." Id. at 21. As to section 7131(d)(2) of the Statute, the Agency asserts that official time is limited to matters involving the collective bargaining relationship, and cites American Federation of Government Employees, Local 2096 v. FLRA, 738 F.2d 633 (4th Cir. 1984) in support. The Agency argues that because a ULP charge is "an offense against the public," and, with certain narrow exceptions, "not a contract violation," Union officials filing charges would be acting "in their capacity as individual or corporate citizens reporting an (alleged) public offense, not as representatives of the exclusive representative." Id. at 22. The Agency also asserts that section 7131(d) addresses the negotiation of official time for the performance of specified representational activities. The Agency contends that the filing of charges, including those that may be filed against other components of the Agency or rival labor organizations, are not a "representational activity" for which official time should be granted. Id.
Finally, the Agency claims that subparagraph (2) of Provision 1 is nonnegotiable because section 7131(d) contains a limitation "that parties may not negotiate for the use of official time in connection with matters controlled by sections 7131(a)[,](b) and (c)." Id. at 23. The Agency argues that decisions as to whether official time can be granted to prepare ULP charges must be made by the Authority and not by the parties. The Agency asserts, in this regard, that the Authority has not established regulations requiring agencies to grant official time to unit employees for preparing ULP charges.
The Union states that subparagraphs 1 and 4 of the provision identify the use of official time for "representation in grievances, discrimination complaints, and other statutory appeals and related hearings." Petition for Review at 4. The Union adds that subparagraph 2 relates to official time to prepare ULP charges, and that subparagraph 9 refers to "technical advising and assistance in representation of employees in both negotiated and statutory procedures." Id.
The Union argues that the cases relied on by the Agency are inapposite. Specifically, the Union notes that, unlike the representatives in Reid, the representative in this case would be authorized by the employee seeking assistance. The Union further asserts that the Agency has failed to demonstrate how the disputed portion of the provision contravenes either 5 U.S.C. § 1204(h) or 5 C.F.R. § 1201.33. The Union maintains that nothing contained in the express language of the regulation proscribes the use of official time for purposes not identified in the regulation.
The Union also argues that there is relevant Authority precedent to support the Union's contention that the provision is negotiable and that "the Authority has held that official time can be negotiated outside the scope of the legal duty to represent employees as the exclusive representative." Response at 18. The Union argues that Authority precedent provides official time for two classes of activities: (1) where an employee is acting as the representative of a union; and (2) where an employee is "performing actions which are connected to 'matters covered by th[is] [chapter.]'" Id. (emphasis omitted) (quoting section 7131(d)(2) of the Statute). With regard to subsections 1, 4 and 9 of Provision 1, the Union argues that official time for statutory appeal proceedings is proper under both classes of representation. In support of this contention, the Union notes that the Agency head did not disapprove the broader grant of official time contained in the introductory paragraph of the provision which references "appeals" and includes statutory appeals. Id. at 19 (emphasis omitted).
Specifically, with regard to subsection 1, the Union states that participation by a Union representative in the statutory appeals process before the MSPB encompasses the Union's role as the exclusive representative of employees. The Union notes that representation in MSPB proceedings will help the Union ensure that employees are treated fairly and equitably under the statutory appeals process, as compared with the parties' negotiated grievance procedure, and may provide information that is germane to the administration of the parties' agreement as well as to future negotiations. The Union also argues that the grant of official time under subsection 1 would fall within the second class of activities for which the grant of official time is justified, namely, for matters covered by the Statute. The Union notes that section 7121(d) of the Statute covers matters relating to prohibited personnel appeals and MSPB appeals, and that section 7121(e)(1) of the Statute covers matters relating to performance-based and conduct-based actions. The Union argues that, by virtue of these sections of the Statute, official time may be negotiated for the appeals processes identified in the provision.
With regard to subsection 2 of the provision, the Union states that official time to prepare ULP charges "does not constitute a matter under the jurisdiction of the [Authority] under [section] 7131(c), which addresses only 'proceedings before the Authority . . . .'" Id. at 22 (quoting section 7131(c) of the Statute). According to the Union, the preparation of such charges "necessarily occurs prior to, and therefore outside of, any phase of a 'proceeding before the Authority.'" Id. at 23. The Union also disputes the Agency's contention that filing charges does not constitute representational activity because charges can be filed by persons who are not acting in a representative capacity. The Union states that subsection 2 would be used only by Union officials and is unconnected to instances where a ULP is filed by an employee in any capacity other than that of a Union representative.
B. Analysis and Conclusions
Provision 1 authorizes the use of official time for the following activities: sections 1 and 4 relate to representation at appeals and, specifically, statutory appeal hearings; section 2 relates to the preparation of ULP charges; and section 9 relates to service as a technical advisor or assistant employee representative in hearings. For the following reasons, we conclude that the provision is negotiable.
In American Federation of Government Employees, National Council of Field Labor Locals and U.S. Department of Labor, Mine Safety and Health Administration, Denver, Colorado, 39 FLRA 546, 552-53 (1991) (Mine Safety), we discussed the various means by which parties can negotiate the use of official time. We noted that official time negotiated under section 7131(d) of the Statute must relate to labor-management relations activities. We further found, however, that section 7131(d) does not preclude parties to a collective bargaining agreement from agreeing to provide official time for other matters. Thus, while section 7131(d) affirmatively permits the negotiation of official time for labor-management relations activities, "it does not preclude parties from agreeing to provide for official (paid) time in other circumstances unrelated to labor-management relations activities, provided that the granting of official time in those other circumstances is otherwise consistent with the Statute and other applicable laws and regulations." Id. at 553. By way of example, we noted that official time could be granted to employees to attend hearings before the Equal Employment Opportunity Commission (EEOC) and to respond to requests for discovery made in accordance with MSPB discovery procedures. See 29 C.F.R. § 1613.214(a)(2) and 5 C.F.R. § 1201.73(a). As it relates to the issues proposed by the Union, Mine Safety holds that parties may negotiate over the use of official time for matters that do not directly relate to labor-management relations activities, as long as those matters are otherwise consistent with the Statute and other applicable laws and regulations.
The Agency argues that the use of official time to represent employees or to serve as a personal representative in appeals procedures before the MSPB is not authorized under section 7131(d) because such activities do not relate to representational matters and do not involve any matter covered by the Statute. We reject the assertion that official time for such matters cannot be negotiated. The Authority previously has held that an exclusive representative may represent employees in statutory appeals procedures. For example, in U.S. Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service, National Office, 41 FLRA 402 (1991), we rejected an assertion that employees acting on behalf of a labor organization do not have a right under section 7102 of the Statute to represent unit employees in a statutory appeal process. Instead, we stated that "[t]he statutory right of employees to serve as union representatives extends to any of the procedures whereby the union represents the views of the union and the unit employees concerning conditions of employment, including statutory appeals procedures." Id. at 413.
The Union explains that official time for representation at statutory appeals proceedings would be granted to those Union representatives who are authorized by employees to act on their behalf. The Union also explains that the official time would enable the Union to fulfill its representational responsibilities of ensuring that employees are treated fairly and equitably and also could yield information that is either germane to contract administration or to future negotiations. We find that nothing in the Statute precludes the negotiation of official time for the representational purposes described by the Union. See also National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Information Systems Command, St. Louis, Missouri, 42 FLRA 1112, 1146-47 (1991) (proposal that allowed union to be a representative at EEO complaints and to file such complaints found negotiable).
Additionally, we reject the Agency's contention that the use of official time to enable Union officials to act as a technical advisor or assistant employee representative in hearings is nonnegotiable. As the Agency notes, a Union official can serve as a personal representative of an employee at an MSPB hearing. That is precisely what section 9 of the provision authorizes and, therefore, section 9 is consistent with the decisions cited by the Agency. The grant of official time for Union officials to serve in that capacity also is consistent with our decision in Mine Safety and, thus, is negotiable.
We also reject the Agency's argument that Provision 1 contravenes 5 U.S.C. § 1204(h) or 5 C.F.R. § 1201.33 because only the MSPB can determine when employees can be granted paid time for MSPB proceedings. The cited statutory provision empowers the MSPB to prescribe regulations that are necessary for its functioning. The regulatory provision provides only that a federal employee who furnishes a sworn statement or appears as a witness at a hearing when ordered to do so by an administrative law judge "will be in official duty status . . . ." 5 C.F.R. § 1201.33. Neither section circumscribes the Agency's ability to provide official time for the activities set forth in the provision.
Finally, we find that the Agency's arguments regarding official time for the preparation of ULP charges, set forth in section 2 of the provision, are misplaced. In U.S. Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, 37 FLRA 362 (1990), we held that official time for matters relating to unfair labor practices is a proper subject for negotiations under section 7131(d) of the Statute inasmuch as such matters "undeniably involve labor-management relations." Id. at 371. We reach the same result here. Accordingly, and as no other basis has been advanced for finding the provision nonnegotiable, we find that Provision 1 is negotiable in its entirety.
IV. Provision 3
ARTICLE 46 - SEXUAL HARASSMENT
The employer may be responsible for its acts and those of its managers and supervisors with respect to sexual harassment regardless of whether the specific acts complained of were know[n] or should have been known by the employer, unless it can be shown that the employer took immediate and appropriate corrective action. [Only the underlined portions are in dispute.]
A. Positions of the Parties
The Agency disputes the Union's claim that the provision merely places a limitation on management that is imposed by federal law. The Agency argues that, while provisions requiring management to exercise its rights in compliance with applicable laws are negotiable, this provision does not have that effect because it does not reference federal law. Instead, the Agency claims that the provision constitutes a contractual limitation establishing the extent of the Agency's liability in a situation where only federal law can define the conduct of supervisors or managers for which it can be held liable. The Agency asserts that if the provision, on its face, does not permit federal law to define management's liability, the provision contravenes "case law regarding sovereign immunity." Statement of Position at 27. The Agency argues that the applicable Federal law in this case is 42 U.S.C. §§ 2000e-2 and 16(c) and that the standard of liability created by the provision is inconsistent with that law.
More specifically, the Agency argues that the provision would apply to all actions that could be characterized as sexual harassment. In contrast, the Agency argues that, in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) (Meritor), the Supreme Court characterized actionable sexual harassment as conduct "sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.'" Statement of Position at 28 (quoting Meritor at 67). The Agency further argues that the provision would hold management strictly liable for sexual harassment, whether the actions complained of were known or should have been known by management. The Agency contends that the Supreme Court specifically rejected this standard of liability in Meritor, concluding, instead, that principles of agency law should apply.
Alternatively, the Agency asserts that the provision is inconsistent with section 7103(a)(14)(C) of the Statute because the extent to which an agency is liable for sexual harassment by its managers and supervisors is specifically provided for by federal statute. Consequently, the Agency argues that the provision is outside the duty to bargain.
The Union states that the provision "has its facial meaning, which is not the meaning attributed to it by the [Agency]." Response at 24. The Union asserts that any limitations on liability for the actions of Agency managers imposed by law are recognized by this provision and by a separate provision of the parties' negotiated agreement that requires Provision 3 to be administered in accordance with applicable laws and regulations. The Union argues that the use of the word "may" in the provision envisions that there will be instances where liability for the acts of an agent do not exist. Id. Moreover, the Union asserts that nothing in this provision modifies the requirement that for "sexual harassment to be actionable [it must] alter the conditions of the victim's employment, create an abusive working environment, or otherwise meet statutory requirements." Id. The Union also argues that the Agency's reliance on Meritor is misplaced. The Union states that the holding in Meritor is consistent with the provision, which recognizes that, under federal law, the principal may be, but is not always, liable for the actions of the agent. The Union maintains that the absence of a list of actionable claims of sexual harassment does not mean that the provision would be administered in a manner that is inconsistent with applicable law and regulation.
Finally, the Union asserts that the provision affects conditions of employment that are not specifically provided for by federal statute. The Union notes that the Agency failed to identify any federal law which specifically provides for liability and, therefore, that the Authority should find the provision negotiable.
B. Analysis and Conclusions
We conclude that Provision 3 is within the Agency's duty to bargain. The thrust of the Agency's principal arguments is that federal law defines the liability of federal employers for sexual harassment and that the provision does not comport with the requirements set forth in law. We disagree.
Nothing in the language of the provision establishes requirements that exceed those to which the Agency otherwise is bound. In this regard, the Union explains that a separate provision of the parties' agreement would require that Provision 3 be administered in accordance with applicable laws and regulations. Thus, as contemplated by the Union, the provision is intended to operate within the existing legal framework governing claims of sexual harassment. The provision's use of the term "may be responsible" buttresses our view that claims of sexual harassment would be adjudicated in accordance with prevailing legal and regulatory requirements, including those relating to knowledge by the Agency of sexual harassment, and would not be based on a stricter standard of liability, as claimed by the Agency. In this regard, we disagree with the Agency's assertion that the provision establishes a standard of liability that was rejected by the Court in Meritor. The Court rejected the view that "employers are always automatically liable for sexual harassment by their supervisors[,]" finding, instead, that it is appropriate "to look to agency principles for guidance in this area." 477 U.S. at 72. In addition, the Court stated that the "absence of notice to an employer does not necessarily insulate that employer from liability." Id. We do not find the provision to be inconsistent with these holdings.
We also find no merit to the Agency's alternative argument that the provision is inconsistent with section 7103(a)(14)(C) of the Statute because liability for sexual harassment is specifically provided for by federal law. The Agency has not cited to any particular provision of law establishing the extent of liability. The only provisions of law referenced by the Agency concerning the negotiability of this provision are 42 U.S.C. §§ 2000e-2 and 2000e-16(c). The former section generally sets forth unlawful employment practices, while the latter section allows for the filing of civil actions by federal employees and applicants for federal employment. Neither section dispositively establishes the scope of the Agency's liability for the conduct of its employees. Consequently, we conclude that the subject of the provision is not specifically provided for by federal law and is within the duty to bargain.
V. Provision 4 3/
ARTICLE 52 - REOPENER FOR NEGOTIABILITY DISPUTES AND RESPONSES
It is understood that the Union's position of negotiability and the Service's position of non-negotiability on the items listed below will not be jeopardized or prejudiced as a result of implementing the Agreement. The parties agree that the items listed below can be reopened for negotiations on the basis decided by the Federal Labor Relations Authority. The parties agree that such negotiations will be reopened only once and that all items listed below as on which reopening is desired will be negotiated collectively at that time. Except as provided below, such negotiations shall, during the life of the Agreement, commence within sixty (60) days of written notice by either party. If, during the life of the agreement, less than one year remains between the receipt of such written notice and the anniversary date of the Agreement, negotiations will be conducted in accordance with the contract Article entitled Effective Date and Duration.
A. Positions of the Parties
In its disapproval, the Agency asserted that this provision appeared to be an attempt to preserve the Union's ability to file a negotiability appeal of the five proposals following the agency head review process. The Agency concluded that the Authority would not likely find that the parties could contractually waive the 15-day time limit for filing negotiability appeals as set forth in section 7117(c)(2) of the Statute. Instead, the Agency suggested that the Authority would find that, by agreeing to the provision, the parties simultaneously had requested and received an allegation of nonnegotiability as to the proposals. Therefore, the Agency asserted that the time period for filing a negotiability appeal began to run "at the latest on May 16, 1990 when the parties executed the agreement." Petition for Review, Attachment 1 at 4. However, as a precautionary measure, and in the event the proposals were deemed properly before the Authority, the Agency "reiterat[ed] the [INS'] assertions of nonnegotiability . . . ." Id.
In its statement of position, the Agency repeats its contentions regarding the effect of the provision, although it also states that it is "not opposed to this procedure in principle[.]" Statement of Position at 9. However, the Agency argues that the Union incorrectly construes the provision as a means to extend the Union's negotiability appeal rights and that the 15-day time limit for appealing the proposals is jurisdictional and "could not be extended by means of an [sic] negotiated agreement." Id. at 10.
The Agency also asserts that the petition for review of the proposals referenced in the provision is untimely. The Agency maintains that the Union incorrectly asserts that the Agency disapproved the proposals as part of an agency head review and, based on this premise, has mischaracterized the disapproval as an unsolicited allegation of nonnegotiability. The Agency claims that Article 52 constitutes a simultaneous request by the Union for a written allegation of nonnegotiability as to the proposals and a response by the INS. Consequently, the Agency asserts that the 15-day period for filing an appeal began on May 16, 1990, the date on which the parties signed the agreement, and not the date of the Agency head's review. Inasmuch as the petition for review was filed on July 6, 1990, the Agency argues that it was untimely filed. Despite its arguments in this regard, the Agency also states that it sees no benefit to be gained from delaying resolution of the negotiability issues surrounding the disputed proposals. In the Agency's view, if the Authority finds that the petition was untimely filed as to the proposals, the Union will simply request to negotiate over the proposals and ultimately file a new petition for review.
The Union states that the provision constitutes "a procedure for setting aside proposals as to which the [A]gency voluntarily expressed oral concerns of non-negotiability during bargaining." Petition for Review at 6. The Union explains that the provision preserves the Union's control as to the initiation of negotiability appeals and would allow the Union, at its option, to request a written allegation of nonnegotiability of the proposals. The Union acknowledges that, once a request for a written allegation is made, the time limits for filing a negotiability appeal, contained in the Authority's Rules and Regulations, would become operative. However, the Union asserts that, by agreeing to Provision 4, it did not tacitly request written allegations of nonnegotiability or agree to a procedure that was equivalent to solicited allegations of nonnegotiability. Rather, the Union claims that it sought "a short-hand way to efficiently process disputes as to non-negotiability in a comprehensive, consolidated manner." Response at 27. The Union specifically requests the Authority "to determine that the introductory paragraph of Article 52 is within the obligation to bargain[.]" Id. at 28.
With respect to the timeliness of the petition for review, the Union asserts that the provision does not constitute a "'trigger'" requiring the Agency to provide written allegations of nonnegotiability, and does not affect the time in which the Union must file a negotiability appeal. Id. at 7. Rather, the Union asserts that the language of the provision merely gathers in one place those proposals that "include mutually recognized issues of negotiability[,]" and does not have any effect on the Union's choice as to "when or how a negotiability appeal will be initiated." Id. Finally, the Union asserts that, because the proposals listed under Provision 4 were not agreed to during negotiations for the new master agreement, the Agency head could not identify the language of these proposals as being disapproved under the section 7114(c) review process. Consequently, the Union maintains that the execution of the agreement could not begin to toll the 15-day time limit for filing a negotiability appeal. In addition, the Union states that the proposals are properly before the Authority by its election and not because of the Agency head's disapproval. The Union claims that it has elected "to use the Agency [h]ead's disapproval letter as written allegations" of nonnegotiability on which its negotiability appeal is based. Id. at 6.
B. Analysis and Conclusions
We conclude that Provision 4 is inconsistent with section 7117(c)(2) of the Statute. Therefore, it is nonnegotiable. Additionally, we find that the petition for review as to the proposals contained in Article 52 is untimely.
Section 7117(c)(2) permits an exclusive representative to file a petition with the Authority "on or before the 15th day after the date on which the agency first makes [an] allegation" that a matter proposed to be bargained is outside the duty to bargain. See also 5 C.F.R. § 2424.3. The time limit for filing a petition for review of an agency allegation of nonnegotiability may not be extended or waived by the Authority. 5 C.F.R. § 2429.23(d). See International Association of Fire Fighters, Local F-33 and U.S. Department of the Navy, Naval Air Station, San Diego, California, 37 FLRA 460 (1990). The Union claims that the provision would allow the Union to determine when to institute a negotiability appeal by requesting a written allegation of nonnegotiability. However, the Authority previously has found language comparable to that contained in the first sentence of Article 52 to constitute both a written request for an allegation of nonnegotiability and a written response to the request under section 2424.3 of our Regulations. See, for example, American Federation of Government Employees, Local 2145 and U.S. Department of Veterans Affairs, Medical Center, Richmond, Virginia, 44 FLRA 1055, 1060 (1992), and cases cited therein. Consequently, we find that the allegation of nonnegotiability was made by INS at the time the parties entered into Article 52. Provision 4 thus constitutes an attempt to extend the time period in which a negotiability appeal may be filed by permitting the Union to file a petition for review at an unspecified future date, rather than in compliance with the statutory filing requirements. Therefore, the provision is inconsistent with section 7117(c)(2) of the Statute and is nonnegotiable.
We also find that the petition for review as to the five proposals listed under Provision 4 is untimely. Because the first sentence of Article 52 constitutes both a written request for an allegation of nonnegotiability and a written response to that request, the Union had 15 days from the date the parties agreed to such language to file a petition for review. The record reveals that the parties agreed to Article 52 on May 16, 1990. The petition for review was filed with the Authority on July 6, 1990. Clearly, the Union's petition for review as to the proposals was untimely filed. Therefore, the proposals are not properly before us in this proceeding and we will dismiss the petition for review as it relates to those proposals.
The Agency must rescind its disapproval of Provisions 1 and 3. 4/
The Union's petition for review with respect to Provision 4 and the proposals referenced therein is dismissed.
Article 16 - CLASSIFICATION
G. The parties agree that, except where the Agency would be impeded in carrying out its overall law enforcement mission, duties not specified in an employee's position description, or reasonabl[y] related thereto, or included in a modified position description, will be avoided unless temporarily required by the needs of the Agency.
Article 21 - PERSONNEL RECORDS
F. Employees will be notified in writing at the completion of any formal Service investigation concerning them by the Office of Professional Responsibility.
Upon completion of an investigation, the work folder containing all releasable material relating to a formal Service investigation will be made available to the employee and/or his representative upon application and in accordance with the provisions of the Freedom of Information Act and/or Privacy Act.
Article 30 - Formal Meetings and Investigative Interviews.
C. (1) The Employer agrees prior to taking a written
or sworn statement from an employee or when
an employee is going to be interrogated before witnesses which may lead to disciplinary action against the employee, he will be advised in writing of his right to be represented by the Union. The failure to obtain representation will not delay the interrogation by more than 48 hours from the time the employee receives notice of the interrogation. The Union will promptly designate its representative and make reasonable efforts to minimize the delay. Upon request, a reasonable extension of time will be granted when the representative cannot be present.
(2) An employee who is requested to give testimony against another employee and who refuses to do so voluntarily will be entitled to representation prior to the time the Agency initiates proceedings to compel such testimony or institutes charges of insubordination.
D. Investigative interviews by the Employer and/or it's [sic] agents may be conducted at any reasonable hour. However, where an employee is directed to appear for an interview, all hours spent in the interview shall be compensated at the appropriate rate.
(If blank, the decision does not have footnotes.)
1/ The Union withdrew one additional provision from its petition for review. It will not be considered further.
2/ The Agency cited the pertinent section as section 1205(g). We note that this section was renumbered as 5 U.S.C. § 1204(h) by Pub. L. 101-12, § 3(a)(7), 103 Stat. 17. We refer to the section as renumbered.
3/ The reference in the provision to "the items listed below" is a reference to five proposals that had not been agreed to during bargaining. The proposals are set forth in the Appendix.
4/ In finding these provisions to be negotiable, we make no
judgment as to their merit.