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 5 FLRA No. 3
 
 NATIONAL TREASURY EMPLOYEES UNION
 Union
 
 and
 
 DEPARTMENT OF THE TREASURY
 INTERNAL REVENUE SERVICE
 JACKSONVILLE DISTRICT, FLORIDA
 Agency
 
                                            Case No. 0-NG-202
 
                DECISION AND ORDER ON NEGOTIABILITY APPEAL
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 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.).
 
    THE BASIC FACTS IN THIS CASE, AS SET FORTH IN THE PARTIES
 SUBMISSIONS, ARE THAT AS THE RESULT OF AN UNFAIR LABOR PRACTICE
 COMPLAINT FILED BY THE UNION ALLEGING A REFUSAL TO BARGAIN CONCERNING A
 CHANGE IN THE UTILIZATION BY ITS REVENUE OFFICERS OF VEHICLES SUPPLIED
 BY THE GENERAL SERVICES ADMINISTRATION (GSA), THE PARTIES SIGNED A
 MEMORANDUM OF UNDERSTANDING IN WHICH THE AGENCY AGREED "TO NEGOTIATE
 OVER THE IMPACT AND IMPLEMENTATION OF GSA CAR ISSUES, INCLUDING BUT NOT
 LIMITED TO THE FOLLOWING THREE ISSUES:  . . .  3.  NUMBER OF CARS
 AVAILABLE TO REVENUE OFFICERS TO PERFORM THEIR OFFICIAL DUTIES." THE
 UNION THEN SUBMITTED A PROPOSAL SPECIFYING THE NUMBER OF CARS THAT WOULD
 BE AVAILABLE TO REVENUE OFFICERS UNDER CERTAIN CONDITIONS.  THEREAFTER,
 THE AGENCY DECLARED THE UNION'S PROPOSAL TO BE NONNEGOTIABLE UNDER
 SECTION 7106(B)(1) OF THE STATUTE AS A MATTER SUBJECT TO BARGAINING ONLY
 AT THE ELECTION OF THE AGENCY, AND OVER WHICH IT CONTENDS IT ELECTED NOT
 TO BARGAIN.  THE UNION AGREES THAT ITS PROPOSAL IS NEGOTIABLE ONLY AT
 THE ELECTION OF THE AGENCY, WITHIN THE AMBIT OF SECTION 7106(B)(1) OF
 THE STATUTE.  HOWEVER, THE UNION ASSERTS THE AGENCY MADE ITS ELECTION BY
 SIGNING THE MEMORANDUM OF UNDERSTANDING AGREEING TO BARGAIN OVER THE
 NUMBER OF CARS IN SETTLEMENT OF THE UNFAIR LABOR PRACTICE.
 
    BASED ON THE RECORD IN THIS CASE, THE PRINCIPAL ISSUE HEREIN CONCERNS
 THE EFFECT OF THE PARTIES' SETTLEMENT AGREEMENT ON THE AGENCY'S
 OBLIGATION TO BARGAIN OVER A MATTER OTHERWISE NEGOTIABLE AT THE ELECTION
 OF THE AGENCY.  THUS, BOTH PARTIES AGREE THAT THE INSTANT PROPOSAL IS
 NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY.  HOWEVER, THEY DISAGREE
 OVER WHETHER THE AGENCY'S PRIOR AGREEMENT TO BARGAIN OVER THE "NUMBER OF
 CARS AVAILABLE TO REVENUE OFFICERS TO PERFORM THEIR OFFICIAL DUTIES . .
 . ," IN SETTLEMENT OF THE EARLIER UNFAIR LABOR PRACTICE, CONSTITUTED ITS
 ELECTION TO BARGAIN OVER THE INSTANT PROPOSAL.  THEREFORE, THE SUBSTANCE
 OF THE PARTIES' CONTENTIONS CONCERNS UNFAIR LABOR PRACTICE ISSUES
 APPROPRIATE FOR RESOLUTION UNDER PROCEDURES SET FORTH UNDER SECTION 7118
 OF THE STATUTE.  UNDER THE CIRCUMSTANCES THERE IS NO ISSUE BEFORE THE
 AUTHORITY, APPROPRIATE FOR RESOLUTION UNDER THE PROCEDURES SET FORTH IN
 SECTION 7117 OF THE STATUTE AND PART 2424 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.1 ET SEQ), CONCERNING WHETHER A PARTICULAR UNION
 PROPOSAL IS ITSELF NONNEGOTIABLE BECAUSE IT IS INCONSISTENT WITH LAW,
 RULE OR REGULATION.  THAT IS, THE PROPER FORUM IN WHICH TO RAISE THE
 ISSUES HERE INVOLVED IS NOT A NEGOTIABILITY APPEAL BUT WOULD BE AN
 UNFAIR LABOR PRACTICE PROCEEDING PURSUANT TO SECTION 7118 OF THE
 STATUTE.  IN THIS CONNECTION, RESOLUTION OF THE INSTANT DISPUTE MAY
 DEPEND UPON THE RESOLUTION OF FACTUAL ISSUES RELATED TO THE PARTIES'
 CONDUCT AND THE MEANING AND INTENT OF THE MEMORANDUM OF UNDERSTANDING
 SIGNED BY THEM.  SUCH FACTUAL DETERMINATION CAN BEST BE ACCOMPLISHED
 THROUGH THE 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 2423.1 ET SEQ.).  SEE, AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1931 AND DEPARTMENT
 OF THE NAVY, NAVAL WEAPONS STATION, CONCORD, CALIFORNIA, 2 FLRA NO.
 19(1979), NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE
 TREASURY, U.S. CUSTOMS SERVICE, WASHINGTON, D.C., 3 FLRA NO. 52(1980)
 AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO LOCAL 2578 AND
 GENERAL SERVICE ADMINISTRATION, NATIONAL ARCHIVES AND RECORDS SERVICE,
 WASHINGTON, D.C., 4 FLRA NO. 84(1980).
 
    BASED ON THE FOREGOING, THIS NEGOTIABILITY 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.
 ACCORDINGLY, IT IS ORDERED THAT THE UNION'S APPEAL BE DISMISSED WITHOUT
 PREJUDICE TO THE UNION'S RIGHT TO RESUBMIT TO THE AUTHORITY ANY
 NEGOTIABILITY DISPUTE WHICH REMAINS CONCERNING THE UNION'S PROPOSALS,
 AFTER RESORTING TO THE PROCEDURES DISCUSSED ABOVE.
 
    ISSUED, WASHINGTON, D.C., JANUARY 27, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY 
 
 
 

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