National Federation of Federal Employees, Local 1363 (Union) and Headquarters, U.S. Army Garrison, Yongsan, Korea (Agency) 



[ v04 p68 ]
04:0068(8)NG
The decision of the Authority follows:


 4 FLRA No. 8
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, 
 LOCAL 1363
 Union
 
 and
 
 HEADQUARTERS, U.S. ARMY
 GARRISON, YONGSAN, KOREA
 Agency
 
                                            Case No. O-NG-234
 
                 ORDER DENYING REQUEST FOR RECONSIDERATION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON A REQUEST BY THE OFFICE OF THE
 JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE ARMY, FOR RECONSIDERATION OF
 THE AUTHORITY'S DECISION IN NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
 LOCAL 1363 AND HEADQUARTERS, U.S. ARMY GARRISON, YONGSAN, KOREA, 4 FLRA
 NO. 8(1980).  THE UNION HAS FILED AN OPPOSITION TO THIS MOTION.
 
    ON OCTOBER 27, 1980, A PETITION FOR JUDICIAL REVIEW OF THE
 AUTHORITY'S DECISION REFERRED TO ABOVE WAS FILED IN THE UNITED STATES
 COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BY THE AGENCY.
 SAID APPEAL IS CURRENTLY PENDING BEFORE THAT COURT.  CONSEQUENTLY, UNDER
 THE PRESENT CIRCUMSTANCES, THE AUTHORITY IS ESTOPPED FROM CONDUCTING
 FURTHER PROCEEDINGS IN THIS MATTER.  GREATER BOSTON TELEVISION CORP. V.
 F.C.C., 149 U.S.APP.D.C.  322, 337, 463 F.2D 268, 283(1971), CERT.
 DENIED, 406 U.S. 950, 92 S.CT. 2042, 32 L.ED.2D 338(1972).
 
    NEVERTHELESS, THE AUTHORITY, IN THIS CASE, HAS DECIDED TO EXERCISE
 ITS DISCRETION TO ADDRESS THE REQUEST ON THE MERITS.  IN THE SUBJECT
 CASE, THE DISPUTED PROPOSAL PERTAINED TO AN AGENCY POLICY REQUIRING
 REGISTRATION OF PRIVATELY OWNED VEHICLES PURSUANT TO THE AGENCY'S
 REGULATIONS IN KOREA.  IN ITS STATEMENT OF POSITION, THE AGENCY
 CONTENDED, IN PERTINENT PART, THAT THE PROPOSAL WAS NOT WITHIN THE SCOPE
 OF THE AGENCY'S DUTY TO BARGAIN BECAUSE, IN ITS VIEW, THE REGISTRATION
 OF THE VEHICLES WAS RELATED TO THE EMPLOYEES RESIDENCY IN KOREA AND NOT
 TO PERSONNEL POLICIES, PRACTICES OR MATTERS AFFECTING THE WORKING
 CONDITIONS OF THE EMPLOYEES.  BASED ON THE RECORD PRESENTED, THE
 AUTHORITY FOUND THAT THE AGENCY'S REQUIREMENTS WERE ATTENDANT UPON
 EMPLOYMENT WITH THE AGENCY AND THAT AN EMPLOYEE'S FAILURE TO COMPLY WITH
 THE POLICY WOULD RESULT IN SANCTIONS, ENFORCEABLE AGAINST THE EMPLOYEE
 DUE SOLELY TO HIS OR HER EMPLOYMENT.  UPON SUCH FINDINGS, THE AUTHORITY
 DETERMINED THAT THE PROPOSAL DID RELATE TO THE CONDITIONS OF EMPLOYMENT
 OF THE SUBJECT EMPLOYEES AND, ACCORDINGLY, THAT THE PROPOSAL WAS WITHIN
 THE AGENCY'S DUTY TO BARGAIN.
 
    IN ITS REQUEST FOR RECONSIDERATION, THE AGENCY ADVANCES A CONTENTION
 NOT PREVIOUSLY PRESENTED AND, THEREFORE, NOT PREVIOUSLY CONSIDERED BY
 THE AUTHORITY.  THE AGENCY ARGUES, IN EFFECT, THAT THE SUBJECT EMPLOYEES
 MUST REGISTER THEIR PRIVATELY OWNED VEHICLES PURSUANT TO AGENCY
 REGULATIONS BECAUSE THE REGULATIONS IMPLEMENT, IN A NON-DISCRETIONARY
 MANNER, A STATUS OF FORCES AGREEMENT (SOFA) WITH THE REPUBLIC OF KOREA.
 NOTWITHSTANDING AND IN APPARENT CONTRADICTION TO THIS NEW CONTENTION,
 HOWEVER, THE AGENCY ADVANCES THE FOLLOWING IN ITS REQUEST:  /1/
 
    THE REGISTRATION PROCESS (UNDER THE REGULATION) IS ONE IN WHICH THE
 UNITED STATES ACTS AS
 
    AGENT FOR KOREA.  THIS REGULATION MERELY COLLECTS IN ONE PLACE THE
 PROCEDURES WHICH PERSONS
 
    DESIRING TO REGISTER THEIR AUTOMOBILES MUST FOLLOW.  THE PROCESS IS
 COMPLETED BY A KOREAN
 
    OFFICIAL WHO "SEALS" THE LICENSE PLACE (SIC) TO THE AUTOMOBILE WITH A
 SPECIAL TOOL.  IF A
 
    PERSON WISHES TO BE EXEMPT FROM THIS ARMY IMPLEMENTING REGULATION,
 BUT NEVERTHELESS WISHES TO
 
    REGISTER AN AUTOMOBILE, HE MUST GO TO A KOREAN REGISTRY WHERE HE
 FILLS OUT SIMILAR FORMS, AN
 
    OFFICIAL "SEALS" HIS CAR IN THE SAME MANNER AS DESCRIBED . . .
 
    THUS, THE AGENCY EXPRESSLY CONCEDES THAT THE SOFA DOES NOT MANDATE
 THAT THE SPECIFIC REGULATIONS IN QUESTION SET FORTH THE EXCLUSIVE
 MECHANISM FOR THE REGISTRATION OF PRIVATELY OWNED VEHICLES BY BARGAINING
 UNIT EMPLOYEES.  THIS IS CONSISTENT WITH THE AUTHORITY'S INITIAL
 DETERMINATION, THAT THE PROPOSAL TO EXEMPT UNIT EMPLOYEES FROM THE
 REQUIREMENTS OF THE AGENCY'S SPECIFIC REGULATIONS FOR THE REGISTRATION
 OF PRIVATELY OWNED VEHICLES WAS WITHIN THE DUTY TO BARGAIN, AND IT
 ACCORDS NO BASIS FOR CHANGING THA