NFFE Local 1363 and Army Garrison Yongsan (Authority decision, August 20, 1982)

Final FLRA decision. This is a final Authority order. 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

NFFE Local 1363 proposed changes to military police highway-patrol procedures in Korea. The Army withdrew a draft regulation, and the parties disputed whether actual working conditions had changed and whether bargaining was required. The Authority said those factual bargaining-duty questions belonged in unfair labor practice procedures. It dismissed the negotiability appeal without prejudice to a later negotiability dispute.

Decision snapshot

• Authority: 5 U.S.C. § 7117.
• Outcome: Appeal dismissed without prejudice; no negotiability ruling.
• Key point: A disputed duty to bargain over changed practices required a factual hearing in the proper forum.

Full text (FLRA public release)

[ v09 p1037 ]

09:1037(146)NG

The decision of the Authority follows:

9 FLRA No. 146

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1363
Union

and

DEPARTMENT OF THE ARMY, HQ, U.S. ARMY
GARRISON, YONGSAN, KOREA
Agency

Case No. O-NG-400

DECISION AND ORDER ON NEGOTIABILITY APPEAL

THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE AUTHORITY
PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE). UPON CAREFUL
CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES' CONTENTIONS,
THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS. /1/

THE RECORD IN THIS CASE INDICATES THAT THE UNION SOUGHT TO NEGOTIATE
TWO PROPOSALS REGARDING AN AGENCY PROPOSED REGULATION REPLACING AN
EARLIER AGENCY REGULATION CONCERNING U.S. MILITARY POLICE HIGHWAY PATROL
OPERATIONS IN KOREA. SUBSEQUENT TO THE FILING OF THE UNION'S APPEAL THE
AGENCY ADVISED THE AUTHORITY THAT THE DRAFT REGULATION HAD BEEN
WITHDRAWN AND THAT THE AGENCY WOULD CONDUCT ITS MILITARY POLICE HIGHWAY
PATROL OPERATIONS UNDER THE EARLIER REGULATION WHICH HAD BEEN
PROMULGATED IN 1976. THE AGENCY CONTENDS, IN THIS REGARD, THAT SINCE
THE UNION'S PROPOSALS ARE KEYED TO THE NOW WITHDRAWN DRAFT REGULATION
THE UNION'S APPEAL SHOULD BE DISMISSED AS BEING MOOT. THE UNION,
HOWEVER, ARGUES THAT WHILE THE DRAFT REGULATION HAS BEEN DESCRIBED IN
THE DRAFT REGULATION AND THAT UNLESS THE AGENCY ALSO WITHDRAWS THESE
PROCEDURES THE UNION'S PROPOSALS, WHICH CONCERN SUCH PROCEDURES, ARE NOT
MOOT.

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. THE ESSENCE OF THE DISPUTE BETWEEN THE PARTIES IN
THIS CASE CONCERNS THE QUESTION OF THE AGENCY'S OBLIGATION TO BARGAIN,
I.E., WHETHER LOCAL PAST PRACTICES OR CONDITIONS OF EMPLOYMENT HAVE BEEN
CHANGED, AND NOT THE NEGOTIABILITY OF THE PARTICULAR PROPOSALS INVOLVED.
RESOLUTION OF THE INSTANT DISPUTE MAY BE DEPENDENT UPON THE RESOLUTION
OF FACTUAL ISSUES WHICH SHOULD BE ACCOMPLISHED THROUGH THE USE OF
INVESTIGATORY AND FORMAL HEARING PROCEDURES. ACCORDINGLY, THE PROPER
FORUM IN WHICH TO RESOLVE THIS DISPUTE IS NOT A NEGOTIABILITY APPEAL,
BUT, RATHER, A TIMELY COMMENCED 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.

ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS, 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
PROPOSALS, AFTER RESORTING TO THE UNFAIR LABOR PRACTICE PROCEDURES
DISCUSSED ABOVE.

ISSUED, WASHINGTON, D.C., AUGUST 20, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ NEITHER THE AGENCY'S STATEMENT OF POSITION, WHICH WAS NOT TIMELY
FILED PURSUANT TO SECTION 2424.6 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOR THE AGENCY'S "CONTINUATION" OF ITS STATEMENT OF
POSITION, WHICH DOES NOT MEET THE REQUIREMENTS FOR FILING ADDITIONAL
SUBMISSIONS TO THE AUTHORITY UNDER SECTION 2424.8 OF THE AUTHORITY'S
RULES AND REGULATIONS, WAS CONSIDERED BY THE AUTHORITY IN THIS CASE.

/2/ IT IS NOTED THAT THE UNION DID FILE A RELATED UNFAIR LABOR
PRACTICE CHARGE CONCERNING THE ISSUE OF THE AGENCY'S OBLIGATION TO
BARGAIN ON THE PROPOSALS. THE UNION, HOWEVER, WITHDREW THIS CHARGE.