National Federation of Federal Employees, Local 1363 (Union) and Headquarters, U.S. Army Garrison, Yongsan, Korea (Agency) (Authority decision, December 15, 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

An Army garrison in Korea sought reconsideration of an Authority decision requiring bargaining over registration of employees’ private vehicles. The Army had filed a petition for judicial review, and the Authority said that pending court case prevented further proceedings. It nevertheless examined the reconsideration arguments and found no persuasive reason to change its prior ruling. The request was denied, leaving the negotiability decision in place.

Decision snapshot

• Authority: 5 U.S.C. § 7117.
• Outcome: Reconsideration denied; earlier bargaining ruling remains in place.
• Key point: The Army did not justify reopening the earlier vehicle-registration decision.

Full text (FLRA public release)

[ v04 p68 ]

04:0068(8)NG

The decision of the Authority follows:

4 FLRA No. 8

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES,
LOCAL 1363
Union

and

HEADQUARTERS, U.S. ARMY
GARRISON, YONGSAN, KOREA
Agency

Case No. O-NG-234

ORDER DENYING REQUEST FOR RECONSIDERATION

THIS MATTER IS BEFORE THE AUTHORITY ON A REQUEST BY THE OFFICE OF THE
JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE ARMY, FOR RECONSIDERATION OF
THE AUTHORITY'S DECISION IN NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1363 AND HEADQUARTERS, U.S. ARMY GARRISON, YONGSAN, KOREA, 4 FLRA
NO. 8(1980). THE UNION HAS FILED AN OPPOSITION TO THIS MOTION.

ON OCTOBER 27, 1980, A PETITION FOR JUDICIAL REVIEW OF THE
AUTHORITY'S DECISION REFERRED TO ABOVE WAS FILED IN THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BY THE AGENCY.
SAID APPEAL IS CURRENTLY PENDING BEFORE THAT COURT. CONSEQUENTLY, UNDER
THE PRESENT CIRCUMSTANCES, THE AUTHORITY IS ESTOPPED FROM CONDUCTING
FURTHER PROCEEDINGS IN THIS MATTER. GREATER BOSTON TELEVISION CORP. V.
F.C.C., 149 U.S.APP.D.C. 322, 337, 463 F.2D 268, 283(1971), CERT.
DENIED, 406 U.S. 950, 92 S.CT. 2042, 32 L.ED.2D 338(1972).

NEVERTHELESS, THE AUTHORITY, IN THIS CASE, HAS DECIDED TO EXERCISE
ITS DISCRETION TO ADDRESS THE REQUEST ON THE MERITS. IN THE SUBJECT
CASE, THE DISPUTED PROPOSAL PERTAINED TO AN AGENCY POLICY REQUIRING
REGISTRATION OF PRIVATELY OWNED VEHICLES PURSUANT TO THE AGENCY'S
REGULATIONS IN KOREA. IN ITS STATEMENT OF POSITION, THE AGENCY
CONTENDED, IN PERTINENT PART, THAT THE PROPOSAL WAS NOT WITHIN THE SCOPE
OF THE AGENCY'S DUTY TO BARGAIN BECAUSE, IN ITS VIEW, THE REGISTRATION
OF THE VEHICLES WAS RELATED TO THE EMPLOYEES RESIDENCY IN KOREA AND NOT
TO PERSONNEL POLICIES, PRACTICES OR MATTERS AFFECTING THE WORKING
CONDITIONS OF THE EMPLOYEES. BASED ON THE RECORD PRESENTED, THE
AUTHORITY FOUND THAT THE AGENCY'S REQUIREMENTS WERE ATTENDANT UPON
EMPLOYMENT WITH THE AGENCY AND THAT AN EMPLOYEE'S FAILURE TO COMPLY WITH
THE POLICY WOULD RESULT IN SANCTIONS, ENFORCEABLE AGAINST THE EMPLOYEE
DUE SOLELY TO HIS OR HER EMPLOYMENT. UPON SUCH FINDINGS, THE AUTHORITY
DETERMINED THAT THE PROPOSAL DID RELATE TO THE CONDITIONS OF EMPLOYMENT
OF THE SUBJECT EMPLOYEES AND, ACCORDINGLY, THAT THE PROPOSAL WAS WITHIN
THE AGENCY'S DUTY TO BARGAIN.

IN ITS REQUEST FOR RECONSIDERATION, THE AGENCY ADVANCES A CONTENTION
NOT PREVIOUSLY PRESENTED AND, THEREFORE, NOT PREVIOUSLY CONSIDERED BY
THE AUTHORITY. THE AGENCY ARGUES, IN EFFECT, THAT THE SUBJECT EMPLOYEES
MUST REGISTER THEIR PRIVATELY OWNED VEHICLES PURSUANT TO AGENCY
REGULATIONS BECAUSE THE REGULATIONS IMPLEMENT, IN A NON-DISCRETIONARY
MANNER, A STATUS OF FORCES AGREEMENT (SOFA) WITH THE REPUBLIC OF KOREA.
NOTWITHSTANDING AND IN APPARENT CONTRADICTION TO THIS NEW CONTENTION,
HOWEVER, THE AGENCY ADVANCES THE FOLLOWING IN ITS REQUEST: /1/

THE REGISTRATION PROCESS (UNDER THE REGULATION) IS ONE IN WHICH THE
UNITED STATES ACTS AS

AGENT FOR KOREA. THIS REGULATION MERELY COLLECTS IN ONE PLACE THE
PROCEDURES WHICH PERSONS

DESIRING TO REGISTER THEIR AUTOMOBILES MUST FOLLOW. THE PROCESS IS
COMPLETED BY A KOREAN

OFFICIAL WHO "SEALS" THE LICENSE PLACE (SIC) TO THE AUTOMOBILE WITH A
SPECIAL TOOL. IF A

PERSON WISHES TO BE EXEMPT FROM THIS ARMY IMPLEMENTING REGULATION,
BUT NEVERTHELESS WISHES TO

REGISTER AN AUTOMOBILE, HE MUST GO TO A KOREAN REGISTRY WHERE HE
FILLS OUT SIMILAR FORMS, AN

OFFICIAL "SEALS" HIS CAR IN THE SAME MANNER AS DESCRIBED . . .

THUS, THE AGENCY EXPRESSLY CONCEDES THAT THE SOFA DOES NOT MANDATE
THAT THE SPECIFIC REGULATIONS IN QUESTION SET FORTH THE EXCLUSIVE
MECHANISM FOR THE REGISTRATION OF PRIVATELY OWNED VEHICLES BY BARGAINING
UNIT EMPLOYEES. THIS IS CONSISTENT WITH THE AUTHORITY'S INITIAL
DETERMINATION, THAT THE PROPOSAL TO EXEMPT UNIT EMPLOYEES FROM THE
REQUIREMENTS OF THE AGENCY'S SPECIFIC REGULATIONS FOR THE REGISTRATION
OF PRIVATELY OWNED VEHICLES WAS WITHIN THE DUTY TO BARGAIN, AND IT
ACCORDS NO BASIS FOR CHANGING THAT DECISION.

ACCORDINGLY, AS A PETITION FOR JUDICIAL REVIEW IS PENDING BEFORE THE
COURT, AND AS THE AGENCY HAS NOT ADVANCED PERSUASIVE REASONS TO WARRANT
A RECONSIDERATION, THE AGENCY'S REQUEST FOR RECONSIDERATION OF THE
AUTHORITY'S DECISION IN THE INSTANT CASE IS HEREBY DENIED.

ISSUED, WASHINGTON, D.C., DECEMBER 15, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ AGENCY'S REQUEST FOR RECONSIDERATION, AT 3.