National Federation of Federal Employees, Local 1141 and Department of the Interior, Bureau of Mines, Albany Metallurgy Research Center, Albany, Oregon (Authority decision, December 13, 1979)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The union sought bargaining over a flexitime schedule at the Bureau of Mines' Albany center. The parties disagreed about whether management had bargained over the schedule itself or only its implementation. Neither identified a specific proposal whose consistency with law or regulation the Authority could decide in a negotiability appeal. The Authority said the dispute instead concerned a possible refusal to bargain, which belonged in an unfair labor practice proceeding. It dismissed the negotiability appeal without deciding whether any flexitime proposal was negotiable.

Decision snapshot

• Authority: 5 U.S.C. §§ 7117 and 7118.
• Outcome: Negotiability appeal dismissed.
• Key point: A dispute over whether an agency fulfilled its bargaining duty belongs in an unfair labor practice proceeding.

Full text (FLRA public release)

[ v02 p245 ]

02:0245(28)NG

The decision of the Authority follows:

2 FLRA No. 28

MR. RUSSELL E. LINCOLN
PRESIDENT, LOCAL 1141
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
7 NW EDGEWOOD DRIVE
CORVALLIS, OREGON 97330

RE: NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1141 AND DEPARTMENT OF
THE INTERIOR, BUREAU OF MINES, ALBANY
METALLURGY RESEARCH CENTER, ALBANY,
OREGON, Case No. 0-NG-80

DEAR MR. LINCOLN:

THE AUTHORITY HAS CAREFULLY CONSIDERED THE PARTIES' SUBMISSIONS FILED
IN THE ABOVE-ENTITLED CASE. THE SUBMISSIONS INDICATE THAT THE
BACKGROUND OF THE DISPUTE IS AS FOLLOWS:

DURING THE TERM OF THE PARTIES' AGREEMENT, THE UNION REQUESTED
NEGOTIATIONS WITH THE ACTIVITY ON A FLEXITIME PROGRAM. AFTER SOME
DISCUSSION BETWEEN THE PARTIES, THE ACTIVITY RESPONDED IN WRITING THAT
IT WAS NOT WILLING TO NEGOTIATE ON THE SUBJECT OF INSTITUTING FLEXITIME
OR ON TOURS OF DUTY, SINCE SUCH SUBJECTS WERE MANAGEMENT RIGHTS AND
HENCE NOT NEGOTIABLE. ACCORDING TO THE UNION, THE ACTIVITY ALSO
INDICATED THAT IT INTENDED UNILATERALLY TO INITIATE A FLEXTIME SCHEDULE,
BUT WOULD BE WILLING TO NEGOTIATE ON THE IMPACT AND IMPLEMENTATION OF
SUCH CHANGE.

THEREAFTER, THE PARTIES MET AND NEGOTIATED. SUBSEQUENTLY, A
MEMORANDUM OF UNDERSTANDING SIGNED BY REPRESENTATIVES OF THE UNION AND
THE ACTIVITY AS WELL AS A MEMO TO EMPLOYEES SETTING FORTH A FLEXITIME
PROGRAM WERE DISTRIBUTED TO ALL ACTIVITY EMPLOYEES.

THE UNION REQUESTED AUTHORITY REVIEW OF AN ALLEGED NEGOTIABILITY
ISSUE BASED ON THESE OCCURRENCES, STATING THAT THE FOLLOWING PROPOSAL
WAS SUBMITTED VERBALLY TO THE ACTIVITY AND WAS DECLARED NONNEGOTIABLE:

NEGOTIATE A FLEXITIME SCHEDULE FOR THE ALBANY METALLURGY RESEARCH
CENTER AS A SUPPLEMENTAL

SECTION TO THE BASIC AGREEMENT OR AS A LETTER OF UNDERSTANDING
BETWEEN THE LOCAL AND

MANAGEMENT.

THE AGENCY SUBMISSION TO THE AUTHORITY STATES THAT THE APPEAL SEEKS
TO RAISE ISSUES WHICH WERE FULLY DISCUSSED DURING THE PARTIES'
NEGOTIATING SESSIONS AND AGAINST WHICH NO BAR TO NEGOTIABILITY WAS
RAISED BY MANAGEMENT. IT CONCLUDES THAT, AT THE PRESENT TIME, THERE IS
NO NEGOTIABILITY ISSUE FOR THE AUTHORITY TO DECIDE. THE UNION, IN ITS
REPLY, TAKES THE POSITION THAT THERE IS NO EVIDENCE TO SUPPORT THE
AGENCY'S CONTENTION THAT IT NEGOTIATED FLEXITIME AND TOURS OF DUTY.
RATHER, IT ESSENTIALLY CLAIMS THAT THE ACTIVITY ONLY "NEGOTIATED THE
RULES FOR IMPLEMENTING THE UNILATERALLY INSTITUTED FLEXITIME PROGRAM
INITIATED BY MANAGEMENT." IN THEIR SUBMISSIONS TO THE AUTHORITY, NEITHER
PARTY ADDRESSED THE NEGOTIABILITY OF ANY SPECIFIC PROPOSALS SUBMITTED BY
THE UNION TO THE ACTIVITY.

THUS, IT IS CLEAR FROM THE RECORD IN THIS CASE THAT THE PARTIES'
CONTENTIONS AND ARGUMENTS FOCUS PRINCIPALLY ON WHETHER, UNDER THE
PARTICULAR CIRCUMSTANCES PRESENTED, THE ACTIVITY HAS MET ITS OBLIGATION
TO BARGAIN WITH THE UNION OVER THE INSTITUTION OF A FLEXITIME PROGRAM,
RATHER THAN ON ISSUES APPROPRIATE FOR RESOLUTION UNDER THE NEGOTIABILITY
PROCEDURES SET FORTH IN SECTION 7117 OF THE STATUTE AND PART 2424 OF THE
AUTHORITY'S RULES AND REGULATIONS CONCERNING WHETHER PARTICULAR UNION
PROPOSALS RELATED TO FLEXITIME ARE THEMSELVES NONNEGOTIABLE, I.E.,
INCONSISTENT WITH LAW, RULE OR REGULATION. /1/

HENCE, THE ESSENCE OF THE PARTIES' CONTENTIONS AND ARGUMENTS CONCERNS
UNFAIR LABOR PRACTICE ISSUES APPROPRIATE FOR RESOLUTION UNDER THE
PROCEDURES SET FORTH IN SECTION 7118 OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1207-8).

THAT IS, SINCE THE INSTANT CASE ARISES OUT OF AN ALLEGED UNILATERAL
CHANGE AND ESSENTIALLY INVOLVES A CLAIM OF A REFUSAL TO BARGAIN AND A
DEFENSE THAT THE BARGAINING OBLIGATION HAS BEEN MET, 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, IT IS EVIDENT THAT 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 THE UTILIZATION 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 (44 FED.REG.
44760 ET SEQ.(1979)).

IT FOLLOWS, THEREFORE, THAT YOUR NEGOTIABILITY APPEAL DOES NOT
PRESENT ISSUES THAT THE AUTHORITY CAN APPROPRIATELY RESOLVE UNDER
SECTION 7117 OF THE STATUTE AND PART 2424 OF ITS RULES AND REGULATIONS.
ACCORDINGLY, YOUR APPEAL IS DISMISSED.

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

CC: M.A. SIMMS

INTERIOR

/1/ IN THIS REGARD, SEC. 2424.1 OF THE AUTHORITY'S RULES AND
REGULATIONS (44 FED.REG. 44765(1979)), SETTING FORTH CONDITIONS
GOVERNING REVIEW OF NEGOTIABILITY ISSUES, STATES IN PERTINENT PART AS
FOLLOWS:

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

. . .