NFFE Local 1430 and Navy Northern Division, Philadelphia (Authority decision, August 31, 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

The Navy sought to extend a trial procedure for approving incentive awards, but NFFE Local 1430 said the existing agreement did not require it to reopen bargaining. The union filed a negotiability appeal. The Authority held that the dispute concerned a duty to bargain or the interpretation of the agreement, not whether a proposal was negotiable under the statute. It dismissed the petition without deciding the underlying dispute.

Decision snapshot

• Authority: 5 U.S.C. § 7117.
• Outcome: Petition dismissed without a negotiability ruling.
• Key point: Agreement interpretation and a bargaining-duty dispute belonged in other procedures.

Full text (FLRA public release)

[ v09 p1086 ]

09:1086(157)NG

The decision of the Authority follows:

9 FLRA No. 157

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1430
(Union)

and

DEPARTMENT OF THE NAVY, NORTHERN
DIVISION, U.S. NAVAL BASE,
PHILADELPHIA, PENNSYLVANIA
(Agency)

Case No. O-NG-659

ORDER DISMISSING PETITION FOR REVIEW

THIS CASE IS BEFORE THE AUTHORITY PURSUANT TO SECTION 7105(A)(2)(E)
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE AND SECTION
2424.1 OF THE AUTHORITY'S RULES AND REGULATIONS ON A PETITION FOR REVIEW
OF NEGOTIABILITY ISSUES FILED BY THE UNION. FOR THE REASONS INDICATED
BELOW, IT HAS BEEN DETERMINED THAT THE UNION'S PETITION MUST BE
DISMISSED.

FROM THE SUBMISSION OF THE PARTIES IN THE RECORD BEFORE THE
AUTHORITY, IT APPEARS THAT DURING THE TERM OF THE PARTIES' NEGOTIATED
AGREEMENT, THE AGENCY AND THE UNION AGREED TO INSTITUTE A NEW APPROVAL
PROCEDURE FOR INCENTIVE AWARDS, WHICH WOULD SERVE TEMPORARILY, ON A
TRIAL BASIS, AS A SUBSTITUTE FOR THE APPROVAL PROCEDURE FOR INCENTIVE
AWARDS, WHICH WOULD SERVE TEMPORARILY, ON A TRIAL BASIS, AS A SUBSTITUTE
FOR THE APPROVAL PROCEDURE SET FORTH IN THEIR CONTRACT. AFTER THE TRIAL
PERIOD WAS COMPLETED, THE AGENCY PROPOSED THAT THE SUBSTITUTE PROCEDURE
CONTINUE IN EFFECT FOR ANOTHER YEAR. THE UNION DID NOT AGREE AND THE
INSTANT DISPUTE BETWEEN THE PARTIES AROSE.

AFTER EFFORTS OF THE FEDERAL MEDIATION AND CONCILIATION SERVICE TO
RESOLVE THE DISPUTE PROVED UNSUCCESSFUL, THE UNION FILED A REQUEST FOR
ASSISTANCE WITH THE FEDERAL SERVICE IMPASSES PANEL. IN RESPONSE TO A
REQUEST FROM THE PANEL, THE AGENCY SET FORTH PROPOSALS TO BE SUBSTITUTED
FOR THE PERTINENT CONTRACT PROVISION. THE AGENCY INDICATED THAT THE
REASON FOR WANTING TO MAKE THE CHANGE WAS THE ASSERTED OVERALL SUCCESS
OF THE TRIAL PROGRAM. THE UNION, ON THE OTHER HAND, CONTENDED THAT IT
HAD NO DUTY TO BARGAIN WITH THE AGENCY ON THE MATTER, AS THE PROVISION
IN THE PARTIES' CONTRACT GOVERNING INCENTIVE AWARD PROCEDURES WAS STILL
IN EFFECT, AND THE CONTRACT COULD NOT BE REOPENED FOR NEGOTIATIONS
EXCEPT BY MUTUAL CONSENT OF THE PARTIES OR BY REASON OF A CHANGE IN LAW
OR REGULATION SUBSTANTIALLY AFFECTING THE CONTRACT. THE PANEL DECLINED
TO ASSERT JURISDICTION OVER THE MATTER IN VIEW OF THE THRESHOLD QUESTION
CONCERNING THE UNION'S OBLIGATION TO BARGAIN. THE UNION THEN FILED THE
INSTANT PETITION FOR REVIEW WITH THE AUTHORITY.

IT APPEARS THAT THE ESSENCE OF THE DISPUTE BETWEEN THE PARTIES IN
THIS CASE IS NOT A QUESTION OF NEGOTIABILITY BUT, RATHER, A QUESTION OF
THE UNION'S OBLIGATION TO BARGAIN ON THE SUBSTITUTE INCENTIVE AWARDS
PROCEDURE IN THE CIRCUMSTANCES DESCRIBED, OR A QUESTION OF THE
INTERPRETATION AND APPLICATION OF THE RELEVANT PROVISIONS IN THE
PARTIES' AGREEMENTS. TO THE EXTENT THAT THE DISPUTE INVOLVES A QUESTION
OF THE UNION'S OBLIGATION TO BARGAIN ON THE AGENCY'S PROPOSAL, THE
PROPER FORUM IN WHICH TO RESOLVE SUCH A QUESTION IS THROUGH UNFAIR LABOR
PRACTICE PROCEDURES AND NOT NEGOTIABILITY CASE PROCEDURES. (SEE, E.G.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND
OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 7 FLRA NO. 91(1982)).
TO THE EXTENT THAT THE CASE INVOLVES A QUESTION OF THE INTERPRETATION
AND APPLICATION OF THE PARTIES' AGREEMENTS, HERE AGAIN A NEGOTIABILITY
APPEAL IS NOT THE PROPER FORUM TO RESOLVE SUCH QUESTIONS. RATHER, THE
PARTIES MIGHT WISH TO UTILIZE THE PROCEDURES THEY MAY HAVE ADOPTED IN
THEIR AGREEMENTS FOR RESOLVING SUCH ISSUES. (SEE. E.G., AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1931 AND DEPARTMENT
OF THE NAVY, NAVAL WEAPONS STATION, CONCORD, CALIFORNIA, 2 FLRA
182(1979)).

BASED ON THE FOREGOING, THE UNION'S PETITION FOR REVIEW DOES NOT
PRESENT ISSUES WHICH THE AUTHORITY CAN APPROPRIATELY RESOLVE AT THIS
TIME UNDER SECTION 7117 OF THE STATUTE AND PART 2424 OF THE RULES AND
REGULATIONS. ACCORDINGLY, WITHOUT PASSING ON THE MERITS OF THE DISPUTE
AND APART FROM OTHER CONSIDERATIONS,

IT IS HEREBY ORDERED THAT THE UNION'S PETITION FOR REVIEW BE, AND IT
HEREBY IS, DISMISSED.

FOR THE AUTHORITY.

ISSUED, WASHINGTON, D.C., AUGUST 31, 1982

JAMES J. SHEPARD, EXECUTIVE DIRECTOR