National Federation of Federal Employees, Local 1454 (Union) and U.S. Veterans Administration, Regional Office, Houston, Texas (Activity)
[ v06 p572 ]
06:0572(104)NG
The decision of the Authority follows:
6 FLRA No. 104 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1454 (Union) and U.S. VETERANS ADMINISTRATION REGIONAL OFFICE, HOUSTON, TEXAS (Activity) Case No. O-NG-379 ORDER DISMISSING APPEAL THIS CASE IS BEFORE THE AUTHORITY PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.) ON A PETITION FOR REVIEW FILED BY THE UNION. FOR THE REASONS INDICATED BELOW, THE UNION'S APPEAL MUST BE DISMISSED. IT APPEARS FROM THE UNION'S APPEAL THAT THE UNION SOUGHT TO NEGOTIATE ON THE IMPACT OF THE ACTIVITY'S SELECTION OF CERTAIN EMPLOYEES TO REPRESENT THE AGENCY IN MEXICO. THE ACTIVITY DECLINED TO NEGOTIATE, INFORMING THE UNION THAT THE MATTER WAS NOT "A SUBJECT FOR NEGOTIATION UNDER OUR CONTRACT OR CURRENT LAW." THE ACTIVITY FURTHER INFORMED THE UNION IN ITS RESPONSE TO THE UNION'S REQUEST THAT THE UNION SHOULD ADVISE THE ACTIVITY OF ANY PROVISION IN EITHER THE PARTIES' AGREEMENT OR LAW WHICH THE UNION BELIEVED MANDATED BARGAINING ON THE MATTER AND THE ACTIVITY WOULD REVIEW SUCH PROVISION. THE ACTIVITY APPARENTLY THEN IMPLEMENTED ITS SELECTION DECISION AND THE UNION FILED THE INSTANT PETITION FOR REVIEW WITH THE AUTHORITY. /1/ THE CIRCUMSTANCES HEREIN DO NOT GIVE RISE TO A NEGOTIABILITY DISPUTE WHICH THE AUTHORITY MAY PROPERLY REVIEW AT THIS TIME PURSUANT TO SECTION 7117 OF THE STATUTE. THUS, IT APPEARS THAT THE ESSENCE OF THE DISPUTE BETWEEN THE PARTIES CONCERNS THE QUESTION ON THE ACTIVITY'S OBLIGATION TO BARGAIN AND NOT THE NEGOTIABILITY OF A PARTICULAR PROPOSAL. /2/ IT IS NOW WELL-ESTABLISHED THAT THE PROPER FORUM IN WHICH TO RESOLVE SUCH A QUESTION IS NOT A NEGOTIABILITY CASE, BUT RATHER AN UNFAIR LABOR PRACTICE PROCEEDING PURSUANT TO SECTION 7118 OF THE STATUTE AND PART 2423 OF THE AUTHORITY'S RULES AND REGULATIONS. SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 6 FLRA NO. 15(1981), AND CASES CITED THEREIN. IN THAT REGARD, RESOLUTION OF THE INSTANT DISPUTE MAY BE DEPENDENT UPON THE RESOLUTION OF FACTUAL ISSUES RELATING TO THE PARTIES' CONDUCT. SUCH FACTUAL DETERMINATIONS CAN BEST BE ACCOMPLISHED THROUGH USE OF INVESTIGATORY AND FORMAL HEARING PROCEDURES ESTABLISHED UNDER THE STATUTE AND THE AUTHORITY'S RULES AND REGULATIONS. ADDITIONALLY, TO THE EXTENT THAT THE DISPUTE INVOLVES A QUESTION OF INTERPRETATION OF A COLLECTIVE BARGAINING AGREEMENT BETWEEN THE PARTIES, THE PROPER FORUM IN WHICH TO RESOLVE SUCH AN ISSUE WOULD BE PURSUANT TO WHATEVER PROCEDURES THE PARTIES HAVE ADOPTED FOR SUCH PURPOSES IN THEIR AGREEMENT. SEE, E.G., NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-62 AND UNITED STATES ARMY, DUGWAY PROVING GROUND, DUGWAY, UTAH, 3 FLRA NO. 107(1980), AND CASES CITED THEREIN. BASED ON THE FOREGOING, AS THE UNION'S APPEAL DOES NOT PRESENT ISSUES THAT THE AUTHORITY CAN APPROPRIATELY RESOLVE AT THIS TIME UNDER SECTION 7117 OF THE STATUTE, AND APART FROM OTHER CONSIDERATIONS, IT IS HEREBY ORDERED THAT THE UNION'S APPEAL BE, AND IT HEREBY IS, DISMISSED, WITHOUT PREJUDICE TO THE FILING OF AN UNFAIR LABOR PRACTICE CHARGE BY THE UNION IN THE APPROPRIATE REGIONAL OFFICE OF THE AUTHORITY AND TO THE PROCESSING OF SUCH A CHARGE. FOR THE AUTHORITY. ISSUED, WASHINGTON, D.C., SEPTEMBER 18, 1981 JAMES J. SHEPARD, EXECUTIVE DIRECTOR --------------- FOOTNOTES: --------------- /1/ THE UNION ATTACHED A COPY OF AN UNFAIR LABOR PRACTICE CHARGE FORM (FLRA FORM 22) TO ITS PETITION, WHEREIN THE UNION CHARGED THE ACTIVITY WITH VIOLATIONS OF SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE FOR THE ALLEGED UNLAWFUL CONDUCT. HOWEVER, WE HAVE BEEN ADVISED THAT THE CHARGE WAS NEVER FILED IN THE APPROPRIATE REGIONAL OFFICE OF THE AUTHORITY, I.E., REGION 6, DALLAS, TEXAS. /2/ THE UNION DID NOT PROPOSE SPECIFIC LANGUAGE FOR NEGOTIATION IN ITS REQUEST TO THE ACTIVITY. THUS, THE MATTER HERE IN DISPUTE IS NOT, IN ANY EVENT, SUFFICIENTLY DELINEATED SO AS TO PROVIDE A BASIS FOR A NEGOTIABILITY DETERMINATION. IN THIS REGARD, IT IS WELL ESTABLISHED THAT A PETITION FOR REVIEW OF A NEGOTIABILITY ISSUE WHICH DOES NOT PRESENT A PROPOSAL SUFFICIENTLY SPECIFIC AND DELIMITED IN FORM AND CONTENT AS TO PERMIT THE AUTHORITY TO RENDER A NEGOTIABILITY DECISION THEREON DOES NOT MEET THE CONDITIONS FOR REVIEW SET FORTH IN SECTION 7117 OF THE STATUTE AND SECTION 2424.1 OF THE AUTHORITY'S RULES AND REGULATIONS. SEE, E.G., ASSOCIATION OF CIVILIAN TECHNICIANS, ALABAMA ACT AND STATE OF ALABAMA NATIONAL GUARD, CASE NO. O-NG-27, 2 FLRA 313(1979).