[ v04 p454 ]
04:0454(61)NG
The decision of the Authority follows:
4 FLRA No. 61 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL COUNCIL OF EEOC LOCALS Union and EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Agency Case No. O-NG-59 DECISION AND ORDER DISMISSING NEGOTIABILITY APPEAL THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET SEQ.). ACCORDING TO THE RECORD BEFORE THE AUTHORITY, THE UNION HEREIN IS THE EXCLUSIVE REPRESENTATIVE FOR A NATIONWIDE BARGAINING UNIT IN THE AGENCY. THIS MATTER AROSE WHEN THE AGENCY SUBMITTED A COPY OF PROPOSED PERFORMANCE REQUIREMENTS FOR CERTAIN POSITIONS TO THE UNION FOR COMMENTS. THE UNION RESPONDED, REQUESTING NEGOTIATIONS. SUBSEQUENTLY, THE AGENCY ADVISED THE UNION THAT IT WAS IMPLEMENTING THE PERFORMANCE REQUIREMENTS, ALLEGING IN ESSENCE THAT SUCH REQUIREMENTS WERE NOT SUBJECT TO NEGOTIATIONS. THE UNION FILED THE INSTANT PETITION FOR REVIEW WITH THE AUTHORITY, STATING THE "ISSUE INVOLVES THE QUESTION OF NEGOTIATING AN AGENCY POLICY ON PERFORMANCE REQUIREMENTS," AND STATING THAT IT HAD REQUESTED IMPACT BARGAINING. THEREAFTER, THE AGENCY, IN ITS STATEMENT OF POSITION FILED WITH THE AUTHORITY, DISAGREED WITH THE UNION'S ARTICULATION OF THE ISSUE. THE AGENCY STATED THAT THE MATERIAL SENT TO THE UNION DID NOT ESTABLISH OR CHANGE AN AGENCY POLICY AND THEREFORE THERE WAS NO DUTY TO BARGAIN. FURTHERMORE, THE AGENCY STATED THAT IT HAD NOT MADE A DETERMINATION THAT THE IMPACT OF PROPOSED PERFORMANCE REQUIREMENTS IS NONNEGOTIABLE: RATHER, THE AGENCY ACKNOWLEDGED THAT SUCH IMPACT AND IMPLEMENTATION PROCEDURES ARE WITHIN THE DUTY TO BARGAIN. FOR THE FOLLOWING REASONS, APART FROM ANY OTHER CONSIDERATIONS, THE DISPUTE HEREIN DOES NOT GIVE RISE TO A NEGOTIABILITY ISSUE WHICH THE AUTHORITY MAY REVIEW AT THIS TIME PURSUANT TO SECTION 7117 OF THE STATUTE. FIRST OF ALL, INSOFAR AS THE PRESENT CASE DOES NOT PRESENT A SPECIFIC PROPOSAL, IT BEARS NO MATERIAL DIFFERENCE FROM ASSOCIATION OF CIVILIAN TECHNICIANS, ALABAMA ACT AND STATE OF ALABAMA NATIONAL GUARD, 2 FLRA NO. 39(1979), IN WHICH THE AUTHORITY DISMISSED THE UNION'S APPEAL. IN THAT CASE THE AUTHORITY DETERMINED THAT A PETITION WHICH DID NOT PRESENT A PROPOSAL SUFFICIENTLY SPECIFIC AND DELIMITED IN FORM AND CONTENT AS TO PERMIT THE AUTHORITY TO RENDER A NEGOTIABILITY DECISION DID NOT MEET THE CONDITIONS FOR REVIEW. THEREFORE, BASED ON THE REASONS SET FORTH IN GREATER DETAIL IN ASSOCIATION OF CIVILIAN TECHNICIANS, SUPRA, THE INSTANT APPEAL LIKEWISE DOES NOT MEET THE CONDITIONS FOR REVIEW PRESCRIBED IN SECTION 7117 OF THE STATUTE AND SECTION 2424.1 OF THE AUTHORITY'S RULES OF PROCEDURE AND MUST BE DISMISSED. ADDITIONALLY, TO THE EXTENT THE UNION IS PROPOSING THE PARTIES ENGAGE IN "IMPACT BARGAINING ON THIS DIRECTIVE (ON PERFORMANCE REQUIREMENTS)," IT IS NOTED FROM THE RECORD THAT THE AGENCY AGREES THAT "MATTERS WHICH ARE COMMONLY REFERRED TO AS IMPACT AND IMPLEMENTATION PROCEDURES . . . ARE SUBJECT TO NEGOTIATION," AND, THUS, THERE IS NO DISPUTE PRESENTLY BEFORE THE AUTHORITY. FINALLY, TO THE EXTENT THAT THE AGENCY CLAIMS IT HAS NO DUTY TO BARGAIN UNDER THE CIRCUMSTANCES, BECAUSE ITS DRAFT DIRECTIVE ON PERFORMANCE REQUIREMENTS DID NOT ESTABLISH OR CHANGE AN AGENCY POLICY AND THE UNION CLAIMS TO THE CONTRARY, 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, 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 USE 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 (5 CFR 2423). FURTHERMORE, TO THE EXTENT THAT THE INSTANT CASE ARISES OUT OF A DISPUTE OVER THE MEANING OF PROVISIONS CONTAINED IN THE PARTIES' AGREEMENT AS ADVERTED TO BY THE AGENCY, THE PROPER FORUM IN WHICH TO RESOLVE SUCH QUESTIONS IS NOT THE NEGOTIABILITY APPEAL BUT, INSTEAD, WOULD BE PURSUANT TO WHATEVER PROCEDURES THE PARTIES THEMSELVES HAVE ADOPTED FOR SUCH PURPOSE THROUGH SUCH AGREEMENT. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1931 AND DEPARTMENT OF THE NAVY, NAVAL WEAPONS STATION, CONCORD, CALIFORNIA, 2 FLRA NO. 19(1979). FOR THE FOREGOING REASONS, THE UNION'S APPEAL DOES NOT PRESENT ISSUES THAT THE AUTHORITY CAN APPROPRIATELY RESOLVE AT THIS TIME UNDER SECTION 7117 OF THE STATUTE AND PART 2424 OF ITS RULES AND REGULATIONS, 5 CFR 2424.1 ET SEQ. ACCORDINGLY, IS IS ORDERED THAT THE APPEAL BE DISMISSED. ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 1980 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY CERTIFICATE OF SERVICE COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE PARTIES LISTED: MR. RONALD D. KING, DIRECTOR CONTRACT AND APPEALS DIVISION AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO 1325 MASSACHUSETTS AVENUE, N.W. WASHINGTON, D.C. 20005 MR. LEROY B. CURTIS, CHIEF LABOR MANAGEMENT RELATIONS EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 2401 E STREET, N.W., ROOM 3214 WASHINGTON, D.C. 20506