American Federation of Government Employees, AFL-CIO, Local 3488 (Union) and Federal Deposit Insurance Corporation, New York Region (Activity) 



[ v02 p782 ]
02:0782(100)NG
The decision of the Authority follows:


 2 FLRA No. 100
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3488
 (Union)
 
 and
 
 FEDERAL DEPOSIT INSURANCE CORPORATION,
 NEW YORK REGION
 (Activity)
 
                                            Case No. 0-NG-61
 
                     DECISION ON NEGOTIABILITY APPEAL
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.).
 
    THE BASIC FACTS, AS SET FORTH IN THE RECORD, ARE AS FOLLOWS:  THE
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3488 (THE
 UNION) IS THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF BANK EXAMINERS
 EMPLOYED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, NEW YORK REGION
 (THE ACTIVITY).  THE UNION AND THE ACTIVITY WERE PARTIES TO A THREE-YEAR
 AGREEMENT WITH AN EXPIRATION DATE OF DECEMBER 21, 1979.
 
    IN FEBRUARY 1977, THE ACTIVITY ANNOUNCED ITS INTENTION OF FORMALLY
 ASSIGNING CERTAIN BANKS TO SPECIFIC FIELD OFFICES WITHIN THE NEW YORK
 REGION FOR EXAMINATION PURPOSES, RATHER THAN TO CONTINUE THE EXISTING
 PRACTICE OF ASSIGNING A PARTICULAR BANK EXAMINATION TO ONE OF SEVERAL
 FIELD OFFICES ON AN AD HOC BASIS DEPENDING UPON AVAILABLE STAFF AND
 SCHEDULE PRIORITIES.  THE UNION FILED A GRIEVANCE UNDER THE PARTIES'
 AGREEMENT CHALLENGING THE PROPOSED REALIGNMENT OF THE BANKS TO SPECIFIC
 FIELD OFFICES.  THE PARTIES THEREAFTER MET TO DISCUSS THE IMPACT OF THE
 PROPOSED REALIGNMENT ON THE BANK EXAMINERS, AND THE UNION ALSO SUBMITTED
 COMMENTS WITH RESPECT THERETO.  AFTER REVIEWING THESE COMMENTS, THE
 ACTIVITY NOTIFIED THE UNION OF ITS INTENTION TO PROCEED WITH THE
 REALIGNMENT AS ORIGINALLY PROPOSED.  THE REALIGNMENT WAS IMPLEMENTED ON
 JUNE 5, 1977.  A FEW WEEKS LATER, THE UNION REQUESTED NEGOTIATIONS WITH
 REGARD TO THE REALIGNMENT AND SUBMITTED SEVERAL PROPOSALS.  WHEN THE
 PARTIES MET ON SEPTEMBER 20, 1977, THE ACTIVITY ASSERTED THAT THE
 UNION'S PROPOSALS WERE NONNEGOTIABLE UNDER SECTIONS 11(B) AND 12(B) OF
 EXECUTIVE ORDER 11491, AS AMENDED, WHICH WAS IN EFFECT AT THAT TIME.
 /1/ THE UNION DID NOT PURSUE THE MATTER FURTHER FOR OVER 18 MONTHS,
 DURING WHICH TIME THE REALIGNMENT REMAINED AND CONTINUES IN EFFECT.
 
    BY LETTER DATED APRIL 12, 1979, THE UNION REQUESTED THE ACTIVITY'S
 POSITION IN WRITING WITH REGARD TO THE NEGOTIABILITY OF PROPOSALS
 RELATING TO THE REALIGNMENT WHICH THE UNION ALLEGED HAD BEEN SUBMITTED
 IN 1977.  IN RESPONSE, THE ACTIVITY ASSERTED, IN PART, THAT THE UNION'S
 REQUEST WAS UNTIMELY INASMUCH AS "THE DISCUSSION OF THESE MATTERS ENDED
 ON SEPTEMBER 20, 1977.  . . . " THE ACTIVITY FURTHER ASSERTED THAT THE
 PROPOSALS SET FORTH IN THE UNION'S LETTER DIFFERED FROM THOSE WHICH THE
 UNION PRESENTED AND THE PARTIES DISCUSSED IN 1977.  THE UNION THEN FILED
 THE INSTANT NEGOTIABILITY APPEAL WITH THE AUTHORITY ON MAY 8, 1979.  IN
 ITS STATEMENT OF POSITION, THE ACTIVITY CONTENDS, AMONG OTHER THINGS,
 THAT THE UNION'S APPEAL WAS NOT TIMELY FILED, THAT THE UNION WAS
 UNREASONABLY DILATORY IN WAITING OVER 18 MONTHS TO PURSUE THIS MATTER,
 AND THAT IT WOULD BE INEQUITABLE TO PERMIT THE UNION TO MAINTAIN THE
 PRESENT APPEAL.  THE ACTIVITY ALSO REASSERTS THAT "(T)HE (U)NION'S
 PETITION TO THE (ACTIVITY) ON JUNE 25, 1977," BUT THAT "(T)HERE IS A
 DISTINCT DIFFERENCE BETWEEN THE PROPOSALS ACTUALLY SUBMITTED AND THE
 (U)NION'S VERSION OF THEM." IN THIS LATTER REGARD, THE UNION IN ITS
 REPLY ACKNOWLEDGES THAT "THE LANGUAGE (OF THE PROPOSALS) IS NOT
 VERBATIM," BUT ARGUES THAT "THE ISSUES ARE IDENTICAL." THE UNION FURTHER
 ARGUES THAT ITS PETITION FOR REVIEW WAS TIMELY FILED UNDER THE STATUTE.
 FOR THE REASONS STATED BELOW, THE AUTHORITY CONCLUDES THAT THE UNION'S
 APPEAL MUST BE DISMISSED.
 
    THIS CASE INVOLVES ESSENTIALLY THE CONTINUATION OF A NEGOTIABILITY
 DISPUTE WHICH AROSE UNDER AND RELATED TO THE PROVISIONS OF THE ORDER,
 SOME 16 MONTHS BEFORE THE STATUTE BECAME EFFECTIVE.  AS NOTED ABOVE,
 WHEN THE INSTANT DISPUTE AROSE IN 1977 AS A RESULT OF THE ACTIVITY'S
 STATED INTENTION TO ASSIGN CERTAIN BANKS TO SPECIFIC FIELD OFFICES FOR
 EXAMINATION PURPOSES, THE ORDER GOVERNED THE RESOLUTION OF NEGOTIABILITY
 ISSUES.  IN THIS CONNECTION, WHEN THE PARTIES MET TO DISCUSS THE UNION'S
 PROPOSALS WITH RESPECT TO THE ACTIVITY'S REALIGNMENT, THE ACTIVITY
 DECLARED THAT SUCH PROPOSALS WERE NONNEGOTIABLE UNDER THE EXCEPTIONS TO
 MANAGEMENT'S OBLIGATION TO BARGAIN CONTAINED IN SECTIONS 11(B) AND 12(B)
 OF THE ORDER.  ALTHOUGH PROCEDURES WERE AVAILABLE TO THE UNION TO
 RESOLVE THE NEGOTIABILITY DISPUTE UNDER THE ORDER, SUCH PROCEDURES WERE
 NEVER INVOKED. INSTEAD, THE UNION WAITED FOR OVER 18 MONTHS BEFORE
 ATTEMPTING TO REACTIVATE THE FOREGOING DISPUTE BY REQUESTING THE
 ACTIVITY'S WRITTEN ALLEGATION AS TO THE NEGOTIABILITY OF THE PROPOSALS
 WHICH HAD BEEN DISCUSSED BETWEEN THE PARTIES IN 1977.  EVEN THEN, IT IS
 UNDISPUTED THAT THE PROPOSALS SO SUBMITTED TO THE ACTIVITY BY THE UNION
 IN APRIL 1979 WERE DIFFERENT FROM THOSE DISCUSSED BY THE PARTIES IN
 1977.  MOREOVER, AS PREVIOUSLY NOTED, THE RECORD INDICATED THAT THE
 PARTIES' AGREEMENT WHICH HAD BEEN NEGOTIATED UNDER THE ORDER IN 1976
 JUST EXPIRED ON DECEMBER 21, 1979.  THUS, THE UNION NOW HAS AN
 OPPORTUNITY TO SUBMIT AND DEFINE ITS PROPOSALS AT THE BARGAINING TABLE
 WHERE THE APPLICABILITY OF THE STATUTE, RATHER THAN THE ORDER, MAY
 LIKEWISE BE CONSIDERED BY THE PARTIES.  SUCH SUBMISSIONS AND DISCUSSIONS
 MAY LEAD TO BILATERAL RESOLUTION OF ANY CONTINUING DISPUTE BY THE
 PARTIES WITHOUT THE NEED FOR INTERVENTION BY THE AUTHORITY.
 
    UNDER ALL OF THE FOREGOING CIRCUMSTANCES, IT IS CONCLUDED THAT
 FURTHE