National Federation of Federal Employees, Local 1454 (Union) and U.S. Veterans Administration, Regional Office, Houston, Texas (Activity) (Authority decision, September 18, 1981)

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

A Veterans Administration union asked to bargain over the impact of selecting employees for a Mexico assignment. The agency refused, and the union filed a negotiability appeal. The Authority held that the dispute concerned whether the agency owed a duty to bargain, not whether a specific proposal conflicted with law or regulation. It dismissed the appeal and pointed to unfair labor practice or agreed contract procedures for the underlying dispute.

Decision snapshot

• Authority: 5 U.S.C. § 7105(a)(2)(E), 5 U.S.C. § 7118.
• Outcome: Negotiability appeal dismissed without a merits ruling.
• Key point: A bargaining duty dispute did not belong in the negotiability appeal process.

Full text (FLRA public release)

[ v06 p572 ]

06:0572(104)NG

The decision of the Authority follows:

6 FLRA No. 104

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1454
(Union)

and

U.S. VETERANS ADMINISTRATION
REGIONAL OFFICE, HOUSTON, TEXAS
(Activity)

Case No. O-NG-379

ORDER DISMISSING APPEAL

THIS CASE IS BEFORE THE AUTHORITY PURSUANT TO SECTION 7105(A)(2)(E)
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101
ET SEQ.) ON A PETITION FOR REVIEW FILED BY THE UNION. FOR THE REASONS
INDICATED BELOW, THE UNION'S APPEAL MUST BE DISMISSED.

IT APPEARS FROM THE UNION'S APPEAL THAT THE UNION SOUGHT TO NEGOTIATE
ON THE IMPACT OF THE ACTIVITY'S SELECTION OF CERTAIN EMPLOYEES TO
REPRESENT THE AGENCY IN MEXICO. THE ACTIVITY DECLINED TO NEGOTIATE,
INFORMING THE UNION THAT THE MATTER WAS NOT "A SUBJECT FOR NEGOTIATION
UNDER OUR CONTRACT OR CURRENT LAW." THE ACTIVITY FURTHER INFORMED THE
UNION IN ITS RESPONSE TO THE UNION'S REQUEST THAT THE UNION SHOULD
ADVISE THE ACTIVITY OF ANY PROVISION IN EITHER THE PARTIES' AGREEMENT OR
LAW WHICH THE UNION BELIEVED MANDATED BARGAINING ON THE MATTER AND THE
ACTIVITY WOULD REVIEW SUCH PROVISION. THE ACTIVITY APPARENTLY THEN
IMPLEMENTED ITS SELECTION DECISION AND THE UNION FILED THE INSTANT
PETITION FOR REVIEW WITH THE AUTHORITY. /1/

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. THUS, IT APPEARS THAT THE ESSENCE OF THE DISPUTE
BETWEEN THE PARTIES CONCERNS THE QUESTION ON THE ACTIVITY'S OBLIGATION
TO BARGAIN AND NOT THE NEGOTIABILITY OF A PARTICULAR PROPOSAL. /2/ 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. 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 RELATING TO THE PARTIES'
CONDUCT. SUCH FACTUAL DETERMINATIONS CAN BEST BE ACCOMPLISHED THROUGH
USE OF INVESTIGATORY AND FORMAL HEARING PROCEDURES ESTABLISHED UNDER THE
STATUTE AND THE AUTHORITY'S RULES AND REGULATIONS.

ADDITIONALLY, TO THE EXTENT THAT THE DISPUTE INVOLVES A QUESTION OF
INTERPRETATION OF A COLLECTIVE BARGAINING AGREEMENT BETWEEN THE PARTIES,
THE PROPER FORUM IN WHICH TO RESOLVE SUCH AN ISSUE WOULD BE PURSUANT TO
WHATEVER PROCEDURES THE PARTIES HAVE ADOPTED FOR SUCH PURPOSES IN THEIR
AGREEMENT. SEE, E.G., NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCAL R14-62 AND UNITED STATES ARMY, DUGWAY PROVING GROUND, DUGWAY,
UTAH, 3 FLRA NO. 107(1980), AND CASES CITED THEREIN.

BASED ON THE FOREGOING, AS THE UNION'S APPEAL DOES NOT PRESENT ISSUES
THAT THE AUTHORITY CAN APPROPRIATELY RESOLVE AT THIS TIME UNDER SECTION
7117 OF THE STATUTE, AND APART FROM OTHER CONSIDERATIONS,

IT IS HEREBY ORDERED THAT THE UNION'S APPEAL BE, AND IT HEREBY IS,
DISMISSED, WITHOUT PREJUDICE TO THE FILING OF AN UNFAIR LABOR PRACTICE
CHARGE BY THE UNION IN THE APPROPRIATE REGIONAL OFFICE OF THE AUTHORITY
AND TO THE PROCESSING OF SUCH A CHARGE.

FOR THE AUTHORITY.

ISSUED, WASHINGTON, D.C., SEPTEMBER 18, 1981

JAMES J. SHEPARD, EXECUTIVE DIRECTOR

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

/1/ THE UNION ATTACHED A COPY OF AN UNFAIR LABOR PRACTICE CHARGE FORM
(FLRA FORM 22) TO ITS PETITION, WHEREIN THE UNION CHARGED THE ACTIVITY
WITH VIOLATIONS OF SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE FOR
THE ALLEGED UNLAWFUL CONDUCT. HOWEVER, WE HAVE BEEN ADVISED THAT THE
CHARGE WAS NEVER FILED IN THE APPROPRIATE REGIONAL OFFICE OF THE
AUTHORITY, I.E., REGION 6, DALLAS, TEXAS.

/2/ THE UNION DID NOT PROPOSE SPECIFIC LANGUAGE FOR NEGOTIATION IN
ITS REQUEST TO THE ACTIVITY. THUS, THE MATTER HERE IN DISPUTE IS NOT,
IN ANY EVENT, SUFFICIENTLY DELINEATED SO AS TO PROVIDE A BASIS FOR A
NEGOTIABILITY DETERMINATION. IN THIS REGARD, IT IS WELL ESTABLISHED
THAT A PETITION FOR REVIEW OF A NEGOTIABILITY ISSUE WHICH DOES NOT
PRESENT A PROPOSAL SUFFICIENTLY SPECIFIC AND DELIMITED IN FORM AND
CONTENT AS TO PERMIT THE AUTHORITY TO RENDER A NEGOTIABILITY DECISION
THEREON DOES NOT MEET THE CONDITIONS FOR REVIEW SET FORTH IN SECTION
7117 OF THE STATUTE AND SECTION 2424.1 OF THE AUTHORITY'S RULES AND
REGULATIONS. SEE, E.G., ASSOCIATION OF CIVILIAN TECHNICIANS, ALABAMA
ACT AND STATE OF ALABAMA NATIONAL GUARD, CASE NO. O-NG-27, 2 FLRA
313(1979).