American Federation of Government Employees, AFL-CIO, Local 2578 and General Services Administration, National Archives and Records Service (Authority decision, April 28, 1980)

Final FLRA decision. The Authority dismissed this negotiability appeal without a merits ruling. Judicial review of final Authority orders is governed by 5 U.S.C. § 7123(a), subject to its statutory exceptions.

Plain-English summary

An AFGE local appealed a nonnegotiability allegation concerning proposed temperature and humidity limits at National Archives worksites. The union revised the proposal before asking the Authority to decide it. Because the agency had not alleged that the revised proposal was outside the duty to bargain, the Authority dismissed the appeal as premature without deciding negotiability.

Decision snapshot

• Authority: 5 U.S.C. § 7117.
• Outcome: Negotiability appeal dismissed as premature.
• Key point: The revised proposal needed an agency allegation before Authority review.

Full text (FLRA public release)

[ v03 p109 ]

03:0109(16)NG

The decision of the Authority follows:

3 FLRA No. 16

APRIL 28, 1980
Mr. Phillip R. Kete
Special Representative, AFGE 2578
Gaffney, Anspach, Schember, Klimaski
and Marks
1712 N Street, N.W.
Washington, D.C. 20036

Re: American Federation of Government
Employees, Afl-cio, Local 2578 and
General Services Administration,
National Archives and Records Service,
Case No. 0-NG-163

DEAR MR. KETE:

THIS REFERS TO YOUR PETITION FOR REVIEW OF A NEGOTIABILITY ISSUE IN
THE ABOVE-ENTITLED CASE, DATED SEPTEMBER 12, 1979, ON BEHALF OF THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2578.

FOR THE REASONS INDICATED BELOW, YOUR PETITION DOES NOT MEET THE
CONDITIONS FOR REVIEW ESTABLISHED IN THE AUTHORITY'S REGULATIONS, AND,
THEREFORE, THE APPEAL MUST BE DISMISSED.

THE UNION'S ORIGINAL PROPOSAL, REJECTED BY THE AGENCY AS NOT WITHIN
ITS DUTY TO BARGAIN IN GOOD FAITH, WAS AS FOLLOWS:

EXCEPT AS OTHERWISE REQUIRED BY LAW OR EXECUTIVE ORDER, OR AS MAY BE
REQUIRED BY THE

TECHNOLOGY OF CERTAIN ARCHIVAL WORK, THE TEMPERATURES IN ALL WORK
AREAS WILL BE KEPT WITHIN

THE RANGE OF 68 DEGREES AND 75 DEGREES AND THE RELATIVE HUMIDITY WILL
BE KEPT IN THE RANGE OF

40 PERCENT AND 50 PERCENT.

THE AGENCY'S ALLEGATION OF NONNEGOTIABILITY, BASED PRINCIPALLY ON ITS
VIEW THAT THE ABOVE PROPOSAL IS CONTRARY TO GOVERNMENT-WIDE REGULATIONS,
I.E., STANDBY CONSERVATION PLAN NO. 2, EMERGENCY BUILDING TEMPERATURE
RESTRICTIONS (44 FED.REG. 39354 ET SEG. (1979)), WAS APPEALED TO THE
AUTHORITY. SUBSEQUENTLY, IN RESPONSE TO THE AGENCY'S STATEMENT OF
POSITION, YOU SUBMITTED A BRIEF WHICH INCLUDED A REVISION OF THE
ORIGINAL UNION PROPOSAL. THE REVISED PROPOSAL INCLUDED THE PHRASE "OR
BINDING GOVERNMENT-WIDE REGULATION" AMONG THOSE AUTHORITIES WHICH WOULD
PERMIT MANAGEMENT TO DEVIATE FROM THE TEMPERATURE AND HUMIDITY RANGES
PRESCRIBED IN THE PROPOSAL. /1/

SECTION 2424.1 OF THE AUTHORITY'S RULES AND REGULATIONS (45 FED.REG.
3511, 3512), PERTAINING TO PETITIONS FOR REVIEW OF NEGOTIABILITY ISSUES,
PROVIDES, IN PART:

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

. . .

IN THE INSTANT CASE, THE RECORD BEFORE THE AUTHORITY CLEARLY
INDICATES THAT THE REVISED PROPOSAL CONCERNING WHICH YOU SEEK A
NEGOTIABILITY DECISION FROM THE AUTHORITY WAS NOT THE SUBJECT OF AN
ALLEGATION OF NONNEGOTIABILITY. IN FACT, YOU STATE THAT "THE OMISSION
OF REFERENCE TO BINDING GOVERNMENT-WIDE REGULATIONS IN THE INITIAL
PROPOSAL WAS AN OVERSIGHT." HENCE, THE APPEAL DOES NOT MEET THE
CONDITIONS FOR REVIEW OF A NEGOTIABILITY ISSUE AS SET FORTH IN SECTION
2424.1 OF THE RULES AND REGULATIONS OF THE AUTHORITY IN THAT THE AGENCY
HAS NOT ALLEGED THAT THE REVISED PROPOSAL WHICH YOU NOW ASK THE
AUTHORITY TO CONSIDER IS OUTSIDE THE DUTY TO BARGAIN. ACCORDINGLY, THE
INSTANT APPEAL IS PREMATURE AND THEREFORE MUST BE DISMISSED WITHOUT A
DETERMINATION BY THE AUTHORITY AS TO THE NEGOTIABILITY OF THE UNION'S
REVISED PROPOSAL.

FOR THE AUTHORITY,

SINCERELY,

SAMUEL A. CHAITOVITZ

EXECUTIVE DIRECTOR

CC: MR. W. M. PAZ

GSA

/1/ THE REVISED UNION PROPOSAL PROVIDES AS FOLLOWS:

EXCEPT AS OTHERWISE REQUIRED BY LAW, EXECUTIVE ORDER, OR BINDING
GOVERNMENT-WIDE

REGULATION, OR AS MAY BE REQUIRED BY THE TECHNOLOGY OF CERTAIN
ARCHIVAL WORK, THE TEMPERATURES

IN ALL WORK AREAS WILL BE KEPT WITHIN THE RANGE OF 68 DEGREES AND 75
DEGREES AND THE RELATIVE

HUMIDITY WILL BE KEPT IN THE RANGE OF 40 PERCENT AND 50 PERCENT.