NFFE Local 1363 and Department of the Army, U.S. Forces Korea (Authority decision, August 22, 1983)

Final FLRA decision. The Authority dismissed the negotiability petition described below. Under 5 U.S.C. § 7123(a), a person aggrieved by a final Authority order may generally seek judicial review within 60 days of issuance. A review petition does not itself stay the order.

Plain-English summary

NFFE Local 1363 sought a negotiability ruling on two proposals tied to a draft Army law enforcement regulation. The Army said it had withdrawn the draft, while the union said the Army was still following it. The Authority found that the central dispute was whether past practices had changed and a bargaining obligation existed, a factual question suited to unfair labor practice procedures. It dismissed the negotiability petition without deciding the proposals.

Decision snapshot

• Authority: 5 U.S.C. §§ 7117 and 7118.
• Outcome: Petition dismissed without a negotiability ruling.
• Key point: A factual dispute about whether the agency changed a practice belongs in unfair labor practice procedures.

Full text (FLRA public release)

[ v12 p627 ]

12:0627(120)NG

The decision of the Authority follows:

12 FLRA No. 120

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES LOCAL 1363, REPUBLIC OF
KOREA
Union

and

DEPARTMENT OF THE ARMY,
U.S. FORCES, KOREA EIGHTH
U.S. ARMY
Agency

Case No. O-NG-637

ORDER DISMISSING PETITION FOR REVIEW

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), and presents issues concerning the negotiability of two Union proposals. /1/ For the following reasons, the Union's petition for review must be dismissed.

The record in this case indicates that the Union sought to negotiate concerning a regulation proposed by the Agency to govern its law enforcement procedures in the Republic of Korea. Subsequent to the filing of the instant petition, the Agency advised the Authority that the proposed regulation had been withdrawn and that law enforcement would continue to be conducted in accordance with Agency regulations issued in 1976. The Agency contends that, since the Union proposals relate to the now withdrawn draft regulation, the Union's petition must be dismissed as moot. The Union asserts that, notwithstanding withdrawal of the draft regulation, the Agency is conducting its law enforcement activities in conformity therewith and, consequently, the Union proposals remain viable.

The Authority concludes that 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 and part 2424 of the Authority's Rules and Regulations. The threshold issue in the dispute between the parties concerns the question of the Agency's obligation to bargain, i.e., whether local past practices have been changed, and not the negotiability of the particular proposals themselves. Thus, resolution of the dispute, which may depend upon factual issues, should be accomplished through the use of the investigatory and formal hearing procedures established for reviewing unfair labor practice charges under section 7118 of the Statute and part 2423 of the Authority's Rules and Regulations. See, e.g., National Federation of Federal Employees, Local 1363 and Department of the Army, Hq., U.S. Army Garrison, Yongsan, Korea, 9 FLRA No. 146 (1982).

Accordingly, apart from other considerations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., August 22, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ The Union's petition for review originally included eight proposals. However, in its response to the Agency's statement of position, the Union withdrew all but two of the proposals.