National Federation of Federal Employees, Local 1454 and Veterans Administration Regional Office, Houston, Texas (Authority decision, February 10, 1982)

Final FLRA decision. The Authority dismissed the union's negotiability appeal without prejudice because the dispute concerned the agency's obligation to bargain, not the proposal's negotiability. Judicial review of a final Authority order is governed by 5 U.S.C. § 7123(a).

Plain-English summary

The Veterans Administration planned to monitor telephone calls to evaluate service at its Houston regional office. NFFE Local 1454 proposed changes to staffing and the workspace, including employee-to-line ratios and noise reduction. The agency said the proposal fell outside bargaining over the impact of telephone monitoring. The Authority found that the dispute concerned whether the agency had a duty to bargain over these subjects, which required an unfair labor practice proceeding. It dismissed the appeal without prejudice to a later negotiability dispute after that process. The order made no ruling on the proposal's merits and imposed no penalty.

Decision snapshot

• Authority: 5 U.S.C. §§ 7117 and 7118.
• Outcome: Negotiability appeal dismissed without prejudice; no merits ruling.
• Key point: The agency's duty to bargain over the proposal had to be resolved through unfair labor practice procedures first.

Full text (FLRA public release)

[ v08 p91 ]

08:0091(16)NG

The decision of the Authority follows:

8 FLRA No. 16

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL
1454
Union

and

VETERANS ADMINISTRATION,
REGIONAL OFFICE, HOUSTON,
TEXAS
Agency

Case No. 0-NG-449

DECISION AND ORDER ON NEGOTIABILITY APPEAL

THE PETITION FOR REVIEW IN 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).
THE FOLLOWING DETERMINATIONS ARE MADE UPON CAREFUL CONSIDERATION OF THE
RECORD IN THIS CASE. /1/

DURING THE TERM OF THE PARTIES' NEGOTIATED AGREEMENT, THE AGENCY
NOTIFIED THE UNION OF ITS INTENT TO IMPLEMENT AN AGENCY-WIDE POLICY
AUTHORIZING TELEPHONE MONITORING FOR PURPOSES OF SERVICE EVALUATION.
THE UNION THEREAFTER REQUESTED "IMPACT BARGAINING" AND SUBMITTED SEVERAL
PROPOSALS. SUBSEQUENTLY, THE UNION SUBMITTED THE PROPOSAL WHICH IS THE
SUBJECT OF THIS APPEAL. THAT PROPOSAL WOULD REQUIRE THE AGENCY, AMONG
OTHER MATTERS, TO ASSIGN THREE EMPLOYEES TO EACH FOUR INCOMING LINES, TO
PLACE BLUE COLORED DRAPES ON ALL WALLS AND TO REARRANGE EXISTING
ANSWERING STATIONS IN ORDER TO REDUCE NOISE LEVELS. THE AGENCY
CONTENDED THAT THERE WAS NO DUTY TO BARGAIN ON THE PROPOSAL BECAUSE IT
CONCERNED MATTERS WHICH WERE OUTSIDE THE SCOPE OF THE PARTIES'
MID-CONTRACT NEGOTIATIONS REGARDING THE "IMPACT AND IMPLEMENTATION" OF
THE AGENCY'S POLICY ON TELEPHONE MONITORING. THE UNION THEN APPEALED TO
THE AUTHORITY.

THE UNION CONTENDS ITS PROPOSAL CONCERNS THE CHANGE IN WORKING
CONDITIONS WHICH WOULD RESULT FROM THE AGENCY'S IMPLEMENTING ITS POLICY
ON TELEPHONE MONITORING. IT ESSENTIALLY STATES THAT, SINCE EMPLOYEE
PERFORMANCE WILL BE MONITORED, THE PROPOSAL CONCERNING THE WORK
AREA/ENVIRONMENT, WHICH MATTERS AFFECT EMPLOYEE PERFORMANCE, RELATES THE
IMPACT AND IMPLEMENTATION OF THE AGENCY'S POLICY OF EVALUATING EMPLOYEES
ON THEIR TELEPHONE PERFORMANCE.

THE CIRCUMSTANCES HEREIN DO NOT GIVE RISE TO A NEGOTIABILITY DISPUTE
WHICH THE AUTHORITY MAY PROPERLY REVIEW AT THIS TIME PURSUANT TO SECTION
7117 OF THE STATUTE. IT IS CLEAR THAT THE ONLY DISPUTE BETWEEN THE
PARTIES CONCERNS THE QUESTION OF THE AGENCY'S OBLIGATION TO BARGAIN AND
NOT THE NEGOTIABILITY OF THE PARTICULAR PROPOSAL INVOLVED. IT IS NOW
WELL ESTABLISHED THAT THE PROPER FORUM IN WHICH TO RESOLVE SUCH A
QUESTION IS NOT A NEGOTIABILITY CASE, BUT, RATHER, AN UNFAIR LABOR
PRACTICE PROCEEDING PURSUANT TO SECTION 7118 OF THE STATUTE AND PART
2423 OF THE AUTHORITY'S RULES AND REGULATIONS. /2/ SEE, E.G., AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF
PERSONNEL MANAGEMENT, WASHINGTON, D.C., 6 FLRA NO. 15(1981), AND CASES
CITED THEREIN. IN THAT REGARD, RESOLUTION OF THE INSTANT DISPUTE MAY BE
DEPENDENT UPON THE RESOLUTION OF FACTUAL ISSUES WHICH SHOULD BE
ACCOMPLISHED THROUGH USE OF INVESTIGATORY AND FORMAL HEARING PROCEDURES
ESTABLISHED UNDER THE STATUTE AND THE AUTHORITY'S RULES AND REGULATIONS.

ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE UNION'S APPEAL
BE, AND IT HEREBY IS, DISMISSED WITHOUT PREJUDICE TO THE UNION'S RIGHT
TO RESUBMIT TO THE AUTHORITY ANY NEGOTIABILITY DISPUTE WHICH REMAINS
CONCERNING THE UNION'S PROPOSAL, AFTER RESORTING TO THE PROCEDURES
DISCUSSED ABOVE.

FOR THE AUTHORITY.

ISSUED, WASHINGTON, D.C., FEBRUARY 10, 1982

JAMES J. SHEPARD, EXECUTIVE DIRECTOR

--------------- FOOTNOTES: ---------------

/1/ THE UNION ASSERTS THAT THE AGENCY'S STATEMENT OF POSITION WAS
UNTIMELY FILED WITH THE AUTHORITY AND REQUESTS THAT IT NOT BE
CONSIDERED. INSOFAR AS APPEARS FROM THE RECORD, THE AGENCY RECEIVED A
COPY OF THE UNION'S COMPLETED PETITION ON JULY 6, 1981 AND THE AGENCY'S
STATEMENT WAS NOT FILED WITH THE AUTHORITY UNTIL AUGUST 6, 1981. THUS,
THE AGENCY'S STATEMENT WAS NOT FILED WITHIN THE TIME LIMITS SET FORTH IN
SECTION 2424.6 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
2424.6(1981)). THEREFORE, THE UNION'S REQUEST IS GRANTED.

/2/ IT IS NOTED THAT THE UNION HAS ALSO FILED A RELATED UNFAIR LABOR
PRACTICE CHARGE CONCERNING THE ISSUE OF THE AGENCY'S OBLIGATION TO
BARGAIN ON THE PROPOSAL. HOWEVER, PURSUANT TO SECTION 2424.5 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.5(1981)), THE UNION
REQUESTED THAT THE AUTHORITY PROCEED WITH THE NEGOTIABILITY APPEAL
FIRST.