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 2 FLRA No. 28
 
 MR. RUSSELL E. LINCOLN
 PRESIDENT, LOCAL 1141
 NATIONAL FEDERATION OF FEDERAL EMPLOYEES
 7 NW EDGEWOOD DRIVE
 CORVALLIS, OREGON 97330
 
                           RE:  NATIONAL FEDERATION OF FEDERAL 
                                EMPLOYEES, LOCAL 1141 AND DEPARTMENT OF 
                                THE INTERIOR, BUREAU OF MINES, ALBANY 
                                METALLURGY RESEARCH CENTER, ALBANY, 
                                OREGON, Case No. 0-NG-80
 
 DEAR MR. LINCOLN:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED THE PARTIES' SUBMISSIONS FILED
 IN THE ABOVE-ENTITLED CASE.  THE SUBMISSIONS INDICATE THAT THE
 BACKGROUND OF THE DISPUTE IS AS FOLLOWS:
 
    DURING THE TERM OF THE PARTIES' AGREEMENT, THE UNION REQUESTED
 NEGOTIATIONS WITH THE ACTIVITY ON A FLEXITIME PROGRAM.  AFTER SOME
 DISCUSSION BETWEEN THE PARTIES, THE ACTIVITY RESPONDED IN WRITING THAT
 IT WAS NOT WILLING TO NEGOTIATE ON THE SUBJECT OF INSTITUTING FLEXITIME
 OR ON TOURS OF DUTY, SINCE SUCH SUBJECTS WERE MANAGEMENT RIGHTS AND
 HENCE NOT NEGOTIABLE.  ACCORDING TO THE UNION, THE ACTIVITY ALSO
 INDICATED THAT IT INTENDED UNILATERALLY TO INITIATE A FLEXTIME SCHEDULE,
 BUT WOULD BE WILLING TO NEGOTIATE ON THE IMPACT AND IMPLEMENTATION OF
 SUCH CHANGE.
 
    THEREAFTER, THE PARTIES MET AND NEGOTIATED.  SUBSEQUENTLY, A
 MEMORANDUM OF UNDERSTANDING SIGNED BY REPRESENTATIVES OF THE UNION AND
 THE ACTIVITY AS WELL AS A MEMO TO EMPLOYEES SETTING FORTH A FLEXITIME
 PROGRAM WERE DISTRIBUTED TO ALL ACTIVITY EMPLOYEES.
 
    THE UNION REQUESTED AUTHORITY REVIEW OF AN ALLEGED NEGOTIABILITY
 ISSUE BASED ON THESE OCCURRENCES, STATING THAT THE FOLLOWING PROPOSAL
 WAS SUBMITTED VERBALLY TO THE ACTIVITY AND WAS DECLARED NONNEGOTIABLE:
 
    NEGOTIATE A FLEXITIME SCHEDULE FOR THE ALBANY METALLURGY RESEARCH
 CENTER AS A SUPPLEMENTAL
 
    SECTION TO THE BASIC AGREEMENT OR AS A LETTER OF UNDERSTANDING
 BETWEEN THE LOCAL AND
 
    MANAGEMENT.
 
    THE AGENCY SUBMISSION TO THE AUTHORITY STATES THAT THE APPEAL SEEKS
 TO RAISE ISSUES WHICH WERE FULLY DISCUSSED DURING THE PARTIES'
 NEGOTIATING SESSIONS AND AGAINST WHICH NO BAR TO NEGOTIABILITY WAS
 RAISED BY MANAGEMENT.  IT CONCLUDES THAT, AT THE PRESENT TIME, THERE IS
 NO NEGOTIABILITY ISSUE FOR THE AUTHORITY TO DECIDE.  THE UNION, IN ITS
 REPLY, TAKES THE POSITION THAT THERE IS NO EVIDENCE TO SUPPORT THE
 AGENCY'S CONTENTION THAT IT NEGOTIATED FLEXITIME AND TOURS OF DUTY.
 RATHER, IT ESSENTIALLY CLAIMS THAT THE ACTIVITY ONLY "NEGOTIATED THE
 RULES FOR IMPLEMENTING THE UNILATERALLY INSTITUTED FLEXITIME PROGRAM
 INITIATED BY MANAGEMENT." IN THEIR SUBMISSIONS TO THE AUTHORITY, NEITHER
 PARTY ADDRESSED THE NEGOTIABILITY OF ANY SPECIFIC PROPOSALS SUBMITTED BY
 THE UNION TO THE ACTIVITY.
 
    THUS, IT IS CLEAR FROM THE RECORD IN THIS CASE THAT THE PARTIES'
 CONTENTIONS AND ARGUMENTS FOCUS PRINCIPALLY ON WHETHER, UNDER THE
 PARTICULAR CIRCUMSTANCES PRESENTED, THE ACTIVITY HAS MET ITS OBLIGATION
 TO BARGAIN WITH THE UNION OVER THE INSTITUTION OF A FLEXITIME PROGRAM,
 RATHER THAN ON ISSUES APPROPRIATE FOR RESOLUTION UNDER THE NEGOTIABILITY
 PROCEDURES SET FORTH IN SECTION 7117 OF THE STATUTE AND PART 2424 OF THE
 AUTHORITY'S RULES AND REGULATIONS CONCERNING WHETHER PARTICULAR UNION
 PROPOSALS RELATED TO FLEXITIME ARE THEMSELVES NONNEGOTIABLE, I.E.,
 INCONSISTENT WITH LAW, RULE OR REGULATION.  /1/
 
    HENCE, THE ESSENCE OF THE PARTIES' CONTENTIONS AND ARGUMENTS CONCERNS
 UNFAIR LABOR PRACTICE ISSUES APPROPRIATE FOR RESOLUTION UNDER THE
 PROCEDURES SET FORTH IN SECTION 7118 OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1207-8).
 
    THAT IS, SINCE THE INSTANT CASE ARISES OUT OF AN ALLEGED UNILATERAL
 CHANGE AND ESSENTIALLY INVOLVES A CLAIM OF A REFUSAL TO BARGAIN AND A
 DEFENSE THAT THE BARGAINING OBLIGATION HAS BEEN MET, THE PROPER FORUM IN
 WHICH TO RAISE THESE ISSUES IS NOT A NEGOTIABILITY APPEAL, BUT WOULD BE
 AN UNFAIR LABOR PRACTICE PROCEEDING PURSUANT TO SECTION 7118 OF THE
 STATUTE.  IN THIS REGARD, IT IS EVIDENT THAT RESOLUTION OF THE INSTANT
 DISPUTE IS DEPENDENT UPON THE RESOLUTION OF FACTUAL ISSUES RELATED TO
 THE PARTIES' CONDUCT.  SUCH FACTUAL DETERMINATIONS CAN BEST BE
 ACCOMPLISHED THROUGH THE UTILIZATION OF THE INVESTIGATORY AND FORMAL
 HEARING PROCEDURES SET FORTH IN PART 2423 OF THE AUTHORITY'S RULES AND
 REGULATIONS, WHICH GOVERN UNFAIR LABOR PRACTICE PROCEEDINGS (44 FED.REG.
 44760 ET SEQ.(1979)).
 
    IT FOLLOWS, THEREFORE, THAT YOUR NEGOTIABILITY APPEAL DOES NOT
 PRESENT ISSUES THAT THE AUTHORITY CAN APPROPRIATELY RESOLVE UNDER
 SECTION 7117 OF THE STATUTE AND PART 2424 OF ITS RULES AND REGULATIONS.
 ACCORDINGLY, YOUR APPEAL IS DISMISSED.
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
    CC:  M.A. SIMMS
 
    INTERIOR
 
    /1/ IN THIS REGARD, SEC. 2424.1 OF THE AUTHORITY'S RULES AND
 REGULATIONS (44 FED.REG. 44765(1979)), SETTING FORTH CONDITIONS
 GOVERNING REVIEW OF NEGOTIABILITY ISSUES, STATES IN PERTINENT PART AS
 FOLLOWS:
 
    THE AUTHORITY WILL CONSIDER A NEGOTIABILITY ISSUE UNDER THE
 CONDITIONS PRESCRIBED BY 5
 
    U.S.C. 7117(B) AND (C), NAMELY:  IF AN AGENCY INVOLVED IN COLLECTIVE
 BARGAINING WITH AN
 
    EXCLUSIVE REPRESENTATIVE ALLEGES THAT THE DUTY TO BARGAIN IN GOOD
 FAITH DOES NOT EXTEND TO ANY
 
    MATTER PROPOSED TO BE BARGAINED BECAUSE, AS PROPOSED, THE MATTER IS
 INCONSISTENT WITH LAW,
 
    RULE OR REGULATION, THE EXCLUSIVE REPRESENTATIVE MAY APPEAL THE
 ALLEGATION TO THE AUTHORITY
 
    . . .
 
 
 

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