American Federation of Government Employees, Local 3403, AFL-CIO (Union) and National Science Foundation, Washington, DC (Agency) (Authority decision, November 12, 1980)

Final FLRA decision. This negotiability order ends the petition before the Authority. An aggrieved person may seek judicial review in a court of appeals within 60 days of issuance under 5 U.S.C. § 7123(a).

Plain-English summary

The National Science Foundation proposed changes to a reduction-in-force circular, and a union submitted additional revisions for bargaining. The agency disputed whether those union proposals were within its midcontract bargaining obligation. The Authority concluded the dispute concerned a duty to bargain, rather than whether a proposal conflicted with law or regulation. It dismissed the negotiability appeal without prejudice to further proceedings through the proper route.

Decision snapshot

• Authority: 5 U.S.C. § 7117, 5 U.S.C. § 7118.
• Outcome: Negotiability appeal dismissed without prejudice; proposal merits not decided.
• Key point: A bargaining obligation dispute was not resolved through a negotiability appeal.

Full text (FLRA public release)

[ v04 p575 ]

04:0575(77)NG

The decision of the Authority follows:

4 FLRA No. 77

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 3403
Union

and

NATIONAL SCIENCE FOUNDATION,
WASHINGTON, D.C.
Agency

Case No. 0-NG-243

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.).

ON NOVEMBER 13, 1979, THE AGENCY FORWARDED A PROPOSED REVISION TO ITS
REDUCTION-IN-FORCE REGULATION, NATIONAL SCIENCE FOUNDATION (NSF)
CIRCULAR NO. 33, TO THE UNION FOR REVIEW. ACCORDING TO THE AGENCY, THE
PROPOSED REVISION WAS DESIGNED ONLY TO BRING NSF CIRCULAR NO. 33 IN
CONFORMANCE WITH THE REQUIREMENTS OF HIGHER AUTHORITY, SUCH AS THE CIVIL
SERVICE REFORM ACT OF 1978 AND THE REGULATIONS OF THE OFFICE OF
PERSONNEL MANAGEMENT. IN RESPONSE, THE UNION SUBMITTED A PROPOSAL,
CONTAINING A SERIES OF ITS OWN DESIRED REVISIONS TO NSF CIRCULAR NO.
33, WHICH IT SOUGHT TO NEGOTIATE. THE AGENCY TOOK THE POSITION THAT THE
DUTY TO BARGAIN DID NOT EXTEND TO THE MATTERS INVOLVED IN THE UNION'S
PROPOSAL, STATING THAT "(T)HE PROPOSAL DOES NOT RELATE TO THE MATTERS
MANDATED BY HIGHER AUTHORITY WHICH ARE THE BASIS FOR THE PROPOSED
REVISION, BUT RATHER IT REPRESENTS AN ATTEMPT TO INITIATE MIDCONTRACT
CHANGES IN ESTABLISHED PERSONNEL POLICIES, PRACTICES AND MATTERS
AFFECTING WORKING CONDITIONS."

IN ITS APPEAL, THE UNION CONTENDS THE PROPOSAL CONCERNS WORKING
CONDITIONS OF UNIT EMPLOYEES. THE UNION ARGUES FURTHER THAT THERE IS NO
PROVISION IN THE STATUTE "LIMITING THE RIGHT TO BARGAIN DURING THE TERM
OF A CONTRACT," AND IN THIS CASE, "THERE IS NO CONTRACTUAL WAIVER OF THE
RIGHT TO BARGAIN."

IN ITS STATEMENT OF POSITION, THE AGENCY ARGUES THAT THE PROPOSED
REVISION TO NSF CIRCULAR NO. 33 IMPLEMENTS STATUTORY PROVISIONS AND
REGULATORY PROVISIONS OF THE OFFICE OF PERSONNEL MANAGEMENT AND
THEREFORE NO OBLIGATION TO BARGAIN EXISTS WITH RESPECT TO THE REVISION
OTHER THAN MATTERS RELATING TO ITS IMPACT AND IMPLEMENTATION. IN
SUPPORT OF THIS ARGUMENT, THE AGENCY RELIES ON NATIONAL SCIENCE
FOUNDATION AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3403,
AFL-CIO, 1 FLRA NO. 116(1979). IN THAT DECISION, WHICH INVOLVED THE
SAME PARTIES AND THE SAME COLLECTIVE BARGAINING AGREEMENT AS IN THIS
CASE, THE AUTHORITY DETERMINED THAT NSF CIRCULAR NO. 33 HAD BEEN
INCORPORATED AS A TERM OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT
AND THE AGENCY WAS OBLIGATED TO BARGAIN OVER THE IMPACT AND
IMPLEMENTATION OF THE PROPOSED CHANGES TO CIRCULAR NO. 33. SINCE THE
AGENCY ASSERTS THAT THE UNION'S PROPOSAL BEARS NO RELATION TO THE
CHANGES IN CIRCULAR NO. 33 PROPOSED BY THE AGENCY, AND SINCE THE AGENCY
ASSERTS THERE IS NO PROVISION IN THE PARTIES' COLLECTIVE BARGAINING
AGREEMENT THAT REQUIRES BARGAINING OVER THE PORTIONS OF CIRCULAR NO. 33
WHICH WILL REMAIN UNALTERED, THE AGENCY MAINTAINS THERE IS NO OBLIGATION
UNDER THE STATUTE TO BARGAIN OVER THE UNION'S PROPOSAL.

THUS, IT APPEARS THAT THE PRINCIPAL DISPUTE BETWEEN THE PARTIES
CONCERNS THE NATURE OF THE UNDERLYING OBLIGATION TO BARGAIN, NOT WHETHER
THE PROPOSALS THEMSELVES ARE NEGOTIABLE. QUESTIONS CONCERNING WHETHER
THE AGENCY IS OBLIGATED TO BARGAIN AT THIS TIME ON THE MATTERS RAISED BY
THE UNION DO NOT FOCUS ON ISSUES 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, I.E.,
INCONSISTENT WITH LAW, RULE OR REGULATION. RATHER, THE SUBSTANCE OF THE
PARTIES' CONTENTIONS CONCERNS UNFAIR LABOR PRACTICE ISSUES APPROPRIATE
FOR RESOLUTION UNDER PROCEDURES SET FORTH UNDER SECTION 7118 OF THE
STATUTE. THAT IS, 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 MAY BE DEPENDENT UPON THE RESOLUTION
OF FACTUAL ISSUES RELATED TO THE PARTIES' CONDUCT. SUCH FACTUAL
DETERMINATIONS CAN BEST BE ACCOMPLISHED THROUGH USE OF 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) AND NATIONAL TREASURY EMPLOYEES
UNION AND DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, WASHINGTON,
D.C., 3 FLRA NO. 52(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 UNOIN'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., NOVEMBER 12, 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. PHILLIP R. KETE

LABOR RELATIONS CONSULTANT

GAFFREY, ANSPACH, SCHEMBER, KLIMASKI, AND MARKS, P.C.

1712 N STREET, N.W.

WASHINGTON, D.C. 20036

MR. THOMAS UBOIS

ASSISTANT DIRECTOR FOR ADMINISTRATION

NATIONAL SCIENCE FOUNDATION

WASHINGTON, D.C. 20550

HONORABLE RICHARD C. ATKINSON

DIRECTOR

NATIONAL SCIENCE FOUNDATION

WASHINGTON, D.C. 20550