National Association of Government Employees, Local R14-62 (Union) and United States Army, Dugway Proving Ground, Dugway, Utah (Activity)  

 3 FLRA No. 107
 
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
 LOCAL R14-62
 Union
 
 and
 
 UNITED STATES ARMY, DUGWAY PROVING GROUND,
 DUGWAY, UTAH
 Activity
 
                                            Case No. 0-NG-151
 
                     DECISION ON NEGOTIABILITY APPEAL
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(D) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
    THE BASIC FACTS, AS SET FORTH IN THE RECORD BEFORE THE AUTHORITY,
 SHOW THAT THE UNION AND THE ACTIVITY ARE PARTIES TO A COLLECTIVE
 BARGAINING AGREEMENT RENEWED ON MARCH 26, 1978, FOR TWO YEARS.  ARTICLE
 XXII, SECTION 3 OF THE PARTIES' AGREEMENT PROVIDES AS FOLLOWS:
 
    IN THE EVENT AMENDMENTS TO THIS AGREEMENT ARE REQUIRED, BECAUSE OF
 LAWS OR REGULATIONS, THE
 
    PARTIES SHALL MEET ON THE ANNIVERSARY OF THIS EFFECTIVE DATE FOR THE
 PURPOSE OF MAKING SUCH
 
    CHANGES.  AT ANY TIME IN THE LIFE OF THE AGREEMENT, EITHER PARTY MAY
 GIVE THE OTHER PARTY
 
    WRITTEN NOTICE OF ITS DESIRE TO SUPPLEMENT OR AMEND THE AGREEMENT.
 IF NO RESPONSE OR A
 
    RESPONSE AGREEING TO THE CHANGE IS RECEIVED WITHIN (30) DAYS, THE
 SUPPLEMENT OR AMENDMENT WILL
 
    BECOME A PART OF THE AGREEMENT.  IF A NEGATIVE RESPONSE IS RECEIVED
 WITHIN (30) DAYS, THE
 
    CHANGE WILL BE NEGOTIATED IN A MANNER MUTUALLY AGREED UPON.
 PROPOSALS TO AMEND THE AGREEMENT
 
    WILL NOT APPLY TO THE TERMINAL DATE OF THE AGREEMENT.
 
    ON MAY 9, 1979, THE UNION RECEIVED PROPOSED CHANGES TO DUGWAY PROVING
 GROUND REGULATION (DPGR) 690-7, THE ACTIVITY'S MERIT PROMOTION AND
 INTERNAL PLACEMENT PROGRAM, AND FOLLOWING NEGOTIATIONS WITH THE ACTIVITY
 ENTERED INTO, IN EFFECT, A MEMORANDUM OF AGREEMENT ON MAY 25, 1979,
 COVERING THE CHANGES.  ADDITIONALLY, THIS MEMORANDUM OF AGREEMENT
 REFERRED TO THE UNION'S DISAGREEMENT WITH THE RESTRICTIONS CREATED BY
 DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL REGULATION (CPR) 950-1, CAREER
 MANAGEMENT-BASIC POLICIES AND REQUIREMENTS, AND DEPARTMENT OF THE ARMY,
 SKILLS, KNOWLEDGE, ABILITY AND PERSONAL CHARACTERISTICS (SKAP) SYSTEM
 AND THE UNION'S WISH TO CHALLENGE THESE REGULATIONS ON THE BASIS OF
 COMPELLING NEED.
 
    ON JUNE 12, 1979, THE UNION REFERRED TO ITS EARLIER DISAGREEMENT WITH
 CPR 950-1 AND SKAP SYSTEM AND REQUESTED NEGOTIATIONS ON THE REMOVAL OF
 SPECIFIC ITEMS FROM DPGR 690-7, AND, ON JUNE 20, 1979, PROPOSED
 ADDITIONAL CHANGES TO DPGR 690-7.  SUBSEQUENTLY, THE ACTIVITY REQUESTED
 A COPY OF THE UNION'S PROPOSALS CONCERNING DPGR 690-7, WHICH WAS
 DELIVERED TO THE ACTIVITY ON JULY 27, 1979.  ON AUGUST 8, 1979, THE
 UNION FILED AN UNFAIR LABOR PRACTICE CHARGE (CASE NO. 7-CA-205) AGAINST
 THE ACTIVITY ALLEGING THAT THE ACTIVITY HAS FAILED TO RESPOND IN A
 TIMELY FASHION TO A REQUEST TO NEGOTIATE CHANGES TO DPGR 690-7.  THE
 UNION'S PETITION FOR REVIEW IN THE INSTANT CASE WAS FILED WITH THE
 AUTHORITY ON AUGUST 20, 1979, AND ON SEPTEMBER 17, 1979, THE UNION
 SUBMITTED TO THE ACTIVITY PROPOSALS TO AMEND THE MARCH 26, 1978,
 AGREEMENT PURSUANT TO THE AFOREMENTIONED REOPENING PROCEDURE.
 
    THE AGENCY IN ITS STATEMENT OF POSITION ASSERTS THAT THE REOPENING
 PROCEDURE OF THE MARCH 26, 1978, AGREEMENT WAS NOT PROPERLY INVOKED
 UNTIL SEPTEMBER 17, 1979, AT WHICH TIME, THE AGENCY CLAIMS, THE UNION
 DID SUBMIT A SPECIFIC REQUEST TO AMEND THE AGREEMENT IN ACCORDANCE WITH
 THE REOPENING PROCEDURE.  IN THIS CONNECTION, THE AGENCY ARGUES THAT
 THERE WAS NO OBLIGATION ON THE ACTIVITY'S PART TO NEGOTIATE WITH THE
 UNION PRIOR TO SEPTEMBER 17, 1979, AND THAT, IN ANY EVENT, BY VIRTUE OF
 ARTICLE III, SECTION 6 OF THE MARCH 26, 1978, AGREEMENT, THE UNION'S
 PROPOSALS CONCERNING CPR 950-1, AND OTHER REGULATIONS, ARE NOT SUBJECTS
 APPROPRIATE FOR LOCAL NEGOTIATIONS BECAUSE THEY ARE NOT WITHIN THE
 DISCRETION OF THE ACTIVITY. ARTICLE III, SECTION 6 PROVIDES, IN ESSENCE,
 THAT MATTERS APPROPRIATE FOR CONSULTATION AND NEGOTIATIONS BETWEEN THE
 PARTIES ARE POLICIES AND PROCEDURES RELATING TO WORKING CONDITIONS WHICH
 ARE WITHIN THE DISCRETION OF THE ACTIVITY.  ADDITIONALLY, THE AGENCY
 ARGUES THAT WHILE THE NEGOTIATIONS TO AMEND THE MARCH 26, 1978,
 AGREEMENT ARE IN PROCESS, IT WOULD BE PREMATURE TO RULE ON THE UNION'S
 PETITION FOR REVIEW.
 
    THE UNION CONTENDS THAT THE REOPENING PROCEDURE PERMITS THE AGREEMENT
 TO BE REOPENED AT ANY TIME, AND, CONTRARY TO THE AGENCY'S ASSERTIONS,
 THE UNION MADE A REQUEST TO NEGOTIATE ON JULY 27, 1979.  THE UNION
 DISPUTES ALSO THE AGENCY'S CONTENTION THAT THE AGREEMENT DOES NOT PERMIT
 REOPENING FOR THE EXPRESS PURPOSE OF NEGOTIATING REGULATIONS, WHICH, IT
 ARGUES, AS HERE, RELATE TO CONDITIONS OF EMPLOYMENT.  IN ADDITION, THE
 UNION INSISTS THAT THE ACTIVITY HAS NOT BARGAINED ON DPGR 690-7, EVEN
 THOUGH IT OPENED THE DOOR TO DO SO, AND THAT IT HAS ENGAGED IN DELAYING
 AND NONRESPONSIVE TACTICS.
 
    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.  THAT IS, THE ACTIVITY AND THE UNION APPEAR TO
 PRINCIPALLY DISAGREE AS TO THE MANNER IN WHICH ARTICLE XXII, SECTION 3,
 PERMITS THEIR AGREEMENT TO BE REOPENED, WHAT CONSTITUTES A PROPER
 REQUEST TO DO SO, AND WHETHER THEIR AGREEMENT PERMITS BARGAINING OVER
 THOSE REGULATIONS THAT THE UNION SEEKS TO NEGOTIATE UPON.  THUS, TO THE
 EXTENT THAT SUCH MATTERS INVOLVE DISPUTES OVER CONTRACT INTERPRETATION,
 THE PROPER FORUM IN WHICH TO RESOLVE THESE DISPUTES WOULD BE PURSUANT TO
 WHATEVER PROCEDURES THE PARTIES THEMSELVES HAVE ADOPTED FOR SUCH
 PURPOSES THROUGH THEIR AGREEMENT.  SEE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1931 AND DEPARTMENT OF THE NAVY, NAVAL WEAPONS
 STATION, CONCORD, CALIFORNIA, CASE NO. 0-NG-55, 2 FLRA NO. 19 (DECEMBER
 5, 1979);  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 1661 AND DEPARTMENT OF JUSTICE, BUREAU OF PRISONS, FEDERAL CORRECTIONAL
 INSTITUTION, DANBURY, CONNECTICUT, CASE NO. 0-NG-43, 2 FLRA NO. 56
 (JANUARY 9, 1980);  AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 2879 AND SOCIAL SECURITY ADMINISTRATION, SAN DIEGO,
 CALIFORNIA, CASE NO. 0-NG-208, 2 FLRA NO. 93 (FEBRUARY 29, 1980).
 
    ADDITIONALLY, TO THE EXTENT THAT THE UNION'S CONTENTIONS FOCUS ON
 WHETHER THE ACTIVITY HAS ENGAGED IN BAD FAITH BARGAINING, I.E., DELAYING
 AND NONRESPONSIVE TACTICS, AND THE ACTIVITY'S DEFENSE THAT IT HAD MET
 ITS BARGAINING OBLIGATION, THE PROPER FORUM IN WHICH TO RAISE THESE
 ISSUES IS NOT A NEGOTIABILITY APPEAL, BUT WOULD BE AN UNFAIR LABOR
 PRACTICE PROCEEDING PURSUANT TO SECTION 7118 OF THE STATUTE. SEE
 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1141 AND DEPARTMENT OF
 THE INTERIOR, BUREAU OF MINES, ALBANY METALLURGY RESEARCH CENTER,
 ALBANY, OREGON, CASE NO. 0-NG-80, 2 FLRA NO. 28 (DECEMBER 13, 1979);
 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1363 AND HEADQUARTERS,
 U.S. ARMY GARRISON, YONGSAN, KOREA, CASE NO. 0-NG-94, 2 FLRA NO. 50
 (DECEMBER 31, 1979);  AND TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL
 TRADES COUNCIL AND NORFOLK NAVAL SHIPYARD, PORTSMOUTH, VIRGINIA, CASE
 NO. 0-NG-256, 2 FLRA NO. 108 (MARCH 14, 1980).
 
    BASED ON THE FOREGOING, THE UNION'S APPEAL DOES NOT PRESENT ISSUES
 THAT THE AUTHORITY CAN APPROPRIATELY RESOLVE AT THIS TIME UNDER SECTION
 7117 OF THE STATUTE AND PART 2424 OF ITS RULES AND REGULATIONS, 5 C.F.R.
 2424.1 ET SEQ.. ACCORDINGLY, THE APPEAL IS HEREBY DENIED WITHOUT
 PREJUDICE TO THE FURTHER PROCESSING OF THE UNION'S PENDING UNFAIR LABOR
 PRACTICE CHARGE.
 
    ISSUED, WASHINGTON, D.C., JULY 17, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY