United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Fairton, New Jersey (Respondent) and American Federation of Government Employees, Council of Prison Locals, AFL-CIO, Local 3975 (Charging Party)
[ v62 p187 ]
62 FLRA No. 44
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
FAIRTON, NEW JERSEY
OF GOVERNMENT EMPLOYEES
COUNCIL OF PRISON LOCALS
AFL-CIO, LOCAL 3975
DECISION AND ORDER
October 26, 2007
Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members
I. Statement of the Case
This case is before the Authority on an exception to the decision of the Administrative Law Judge (the Judge) filed by the Respondent. The General Counsel (GC) filed an opposition to the Respondent's exception, a motion to strike, and a cross-exception.
The complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing a new assignment policy without completing negotiations. The Judge found that the Respondent violated the Statute as alleged, but denied the GC's request for a status quo ante remedy. For the following reasons, we deny the GC's motion to strike and we dismiss the complaint.
II. Background and Judge's Decision
The Respondent, a correctional facility, employs bargaining unit members in both custodial and non-custodial positions. Employees in custodial positions primarily supervise or have direct contact with inmates, while employees in non-custodial positions do not. However, all employees are trained in custodial duties and are considered to be correctional workers.
The Respondent notified the Charging Party of its intent to begin regularly assigning non-custodial staff during the day watch to cover custodial posts when needed and offered to bargain over the impact and implementation of the change. [n1] One bargaining meeting was held during which the Charging Party submitted 15 proposals to the Respondent. During the meeting, the Respondent informed the Charging Party that non-custodial staff would not be used to fill in at certain custodial posts and asked the Charging Party for impact and implementation proposals. When the Charging Party responded that it had already submitted its proposals, the Respondent stated that the Charging Party had until a certain date to submit proposals. The meeting ended without resolution, and the Charging Party never amended or supplemented its proposals. Subsequently, the Respondent implemented the new assignment policy as proposed. The Charging Party filed an unfair labor practice (ULP) charge, and the GC issued a complaint, alleging that the Respondent violated the Statute by implementing the new assignment policy without completing negotiations.
The parties stipulated that the new assignment policy caused a change in conditions of employment that was more than de minimis. Thus, the Judge found that the Respondent was required to bargain over the Charging Party's proposals unless all of the proposals were non-negotiable or the subject matter of the change, as argued by the Respondent, was covered by the agreement. The Judge found that at least two of the Charging Party's proposals were negotiable. [n2]
[ v62 p188 ] Turning to the Respondent's "covered by" defense, the Judge considered two provisions of the agreement. First, the Judge found that Article 16, § c establishes a contractual basis for the assignment of non-custodial staff to custodial duties. [n3] However, the Judge found that this provision also requires the Respondent to comply with applicable laws and Authority precedent. Thus, the Judge concluded that the provision did not demonstrate that the Charging Party waived its right to bargain over the impact and implementation of the new assignment policy. Second, the Judge considered Article 18, § o, which provides, in relevant part, that "[w]ork assignments on the same shift may be changed without advance notice." [n4] Judge's Decision at 10. Because the Judge found that the meaning of the term "work assignments" was unclear, he considered the meaning in light of the title of the section (Hours of Work) and in conjunction with the Respondent's obligation under Article 16, § c to comply with applicable laws and Authority precedent when assigning work. The Judge found that Article 18, § o was "only intended to govern shift changes rather than changes of regular duties." Id. at 11.
Furthermore, the Judge found that the Respondent's new policy was not inextricably bound up with Articles 16 and 18 of the agreement. In reaching this conclusion, the Judge considered witness testimony about the bargaining history of both provisions. See id. One GC witness who negotiated the agreement on behalf of the Union testified that Article 16 was adopted without much discussion and with only minor changes from the prior agreement. That witness also testified that Article 18 was designed to require the Respondent to provide employees with as much notice as possible before changing their shifts and was primarily applicable to custodial staff. Another witness for the GC, the Union President, testified that he considered the change in work assignments within the same shift referenced in Article 18, § o as being "limited to the Correctional Services Department[,]" although such a limitation, he admitted, is not contained in the language of the provision. Id.
Based on the foregoing, the Judge concluded that the Respondent's new assignment policy was not covered by the agreement and the Respondent was, therefore, obligated to bargain over the impact and implementation of the new assignment policy. Because the Judge found that the Respondent did not complete bargaining over the Charging Party's negotiable proposals, he concluded that the Respondent violated the Statute as alleged. As a remedy, the Judge recommended only a cease and desist Order because he found that a status quo ante remedy was "not necessary to effectuate the purposes and policies of the Statute." Id. at 15.
III. Positions of the Parties
A. Respondent's Exception
According to the Respondent, the FLRA's Boston and Dallas Regional Directors (RD) have both dismissed ULP charges in cases similar to the one here. The Respondent claims it submitted the Boston RD's dismissal letter to the Judge below, but asks the Authority to take official notice of two dismissal letters of the Dallas RD, copies of which the Respondent has submitted with its exception. See Exception at 7, 10.
The Respondent disputes the Judge's finding that the new assignment policy was not covered by the parties' agreement, arguing that the Judge did not interpret the relevant contract provisions reasonably. According to the Respondent, Article 16 of the agreement gives it the right to change employees' work assignments and Article 18 explicitly permits it to do so "without advance notice of any kind." Id. at 8. As such, the Respondent asserts that the subject matter of changing work assignments is expressly covered by the agreement, which it claims satisfies the first part of the Authority's "covered by" test, as set forth in United States Dep't of Health and Human Services, Soc. Sec. Admin., Balt., Md., 47 FLRA 1004, 1018 (1993) (SSA).
The Respondent also claims that the second part of the "covered by" test is met because "changing the work assignments of non-custodial employees is `inseparably bound up with' and `plainly an aspect of' the issue of changing work assignments that is explicitly addressed [ v62 p189 ] in the [a]greement." Id. (citing SSA). Therefore, the Respondent claims that, under either part of the "covered by" test, it was not obligated to bargain over the new assignment policy.
B. GC's Opposition, Motion To Strike, and Cross Exception
The GC disputes the Respondent's reliance on the Boston RD's decision dismissing a ULP charge in a similar case because that decision, the GC argues, is both factually distinguishable and non-precedential. Based on 5 C.F.R. § 2429.5, the GC moves to strike the two Dallas RD dismissal letters that the Respondent submitted with its exception because the GC claims that the Respondent had the opportunity to, but did not, submit those letters to the Judge below. Opposition at 13-14.
According to the GC, "[e]ven if this matter were found to be covered by Article 16, the [Judge] correctly found that Article 16, § c contains a provision preserving the Union's right to negotiate the assignment of any work" including "changes to work assignments like this one." Id. at 9. In this connection, the GC asserts that "an agreement may cover a matter, but nevertheless . . . evince a reservation of bargaining rights." Id. at 10 (citing Soc. Sec. Admin., Balt., Md., et al., 60 FLRA 674, 680-81 (2005)). As such, the GC asserts that the Judge acted as a "reasonable reader" by interpreting the agreement as reserving the Charging Party's right to bargain over assignment changes and concluding that the change, therefore, was not covered by the parties' agreement. Id.
The GC also claims the Judge correctly found that the new assignment policy was not covered by Article 18 of the agreement. In this connection, the GC asserts that "nothing in the language of Article 18 expressly contains language concerning" the Respondent's new assignment policy. Id. at 11. According to the GC, Article 18 establishes notice requirements for making shift changes only and "does not give the Respondent the right to make any work assignment change without regard to any other statutory or contractual obligation it may have." Id. In addition, the GC claims that the Respondent's new assignment policy is not inseparably bound up with a subject expressly covered by Article 18.
The GC filed a cross exception to the portion of the Judge's decision denying a status quo ante remedy. Specifically, the GC argues that the Judge improperly weighed the factors relevant in determining whether a status quo ante remedy is appropriate. According to the GC, the nature and circumstances of the violation support a status quo ante remedy.
IV. Preliminary Issue
Although the Authority normally "will not consider evidence offered by a party [that] was not presented in the proceedings before the . . . Judge," the Authority may "take official notice of such matters as would be proper." 5 C.F.R. § 2429.5. Here, the GC asserts without dispute that the Respondent could have submitted the Dallas RD dismissal letters below, but did not. Nevertheless, the Authority consistently has found it appropriate to take official notice of the record of other FLRA proceedings, including dismissal letters of an RD. See, e.g., AFGE, Local 3911, 58 FLRA 101 (2002) (denying union's motion to strike, and taking official notice of, an RD's dismissal letter). Consequently, we deny the GC's motion to strike the Dallas RD's dismissal letters that the Respondent submitted with its exception.
V. Analysis and Conclusions
The Judge found that the Respondent was required to bargain over the new assignment policy because the subject matter of this policy is not covered by the parties' agreement. For the following reasons, we disagree.
The "covered by" doctrine is a well established defense to a claim that an agency failed to provide a union with notice and an opportunity to bargain over changes in conditions of employment. See United States Dep't of the Interior, Wash., D.C., 56 FLRA 45, 53 (2000). In this regard, the "covered by" doctrine excuses parties from bargaining on the ground that they have already bargained and reached agreement concerning the matter at issue. See SSA, 47 FLRA at 1015, see also AFGE, Local 225, 56 FLRA 686, 689 (2000) ("covered by" doctrine operates to prevent, not require bargaining). A subject matter for negotiation is covered by a collective bargaining agreement if the matter is expressly contained in the agreement. See SSA, 47 FLRA at 1018. If the agreement does not expressly contain the matter, then the Authority will determine w