American Federation of Government Employees, Local 32, AFL-CIO (Union) and Office of Personnel Management, Washington, DC (Agency) 

 

 6 FLRA No. 15
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 32
 Union
 
 and
 
 OFFICE OF PERSONNEL MANAGEMENT,
 WASHINGTON, D.C.
 Agency
 
                                            Case Nos. O-NG-328 
                                                      O-NG-338 
                                                      O-NG-346
 
         CONSOLIDATED DECISION AND ORDER OF NEGOTIABILITY APPEALS
 
    THESE THREE CASES COME BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY
 (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).  INASMUCH AS ALL THREE CASES INVOLVE THE SAME AGENCY (OPM) AND
 UNION (AFGE), AND RAISE THE IDENTICAL ISSUES, THE AUTHORITY'S ACTION
 WITH RESPECT TO EACH SUCH APPEAL IS EXPRESSED IN THE INSTANT
 CONSOLIDATED DECISION WHICH APPLIES INDIVIDUALLY TO EACH OF THEM.
 
    THE RECORD BEFORE THE AUTHORITY DISCLOSES THAT, DURING THE TERM OF
 THE PARTIES' NEGOTIATED AGREEMENT, THE AGENCY NOTIFIED THE UNION OF AN
 INTERNAL REORGANIZATION AFFECTING THE AGENCY'S RETIREMENT INFORMATION
 OFFICE, COMPENSATION GROUP;  SYSTEMS DEVELOPMENT AND MAINTENANCE BRANCH
 OF STAFFING SERVICES GROUP;  AND REVIEW AND CONTROL, ACCOUNTING AND
 COLLECTIONS SECTION, WITHIN COMPENSATION GROUP.  IN ALL THREE INSTANCES,
 THE UNION THEREAFTER REQUESTED "IMPACT BARGAINING" AND SUBMITTED
 SUBSTANTIALLY IDENTICAL PROPOSALS CONCERNING THE DEVELOPMENT OF A
 TRAINING AGREEMENT COVERING CERTAIN POSITIONS IN THOSE OFFICES;  /1/ THE
 AGENCY REFUSED TO NEGOTIATE;  AND THE UNION FILED THE NEGOTIABILITY
 APPEALS WHICH HAVE BEEN CONSOLIDATED HEREIN.  /2/
 
    IN ITS STATEMENT OF POSITION CONCERNING EACH APPEAL, THE AGENCY
 STATES:  "(W)E DO NOT ASSERT THAT THE SUBJECT PROPOSALS ARE
 NON-NEGOTIABLE PER SE.  WHAT WE DO ASSERT IS THAT THESE PROPOSALS ARE
 UNRELATED TO THE REORGANIZATION AND THAT THE ISSUE PRESENTED BY AFGE TO
 THE AUTHORITY FOR RESOLUTION INVOLVES A QUESTION CONCERNING THE
 OBLIGATION TO BARGAIN RATHER THAN A NEGOTIABILITY QUESTION.  THE
 AUTHORITY HAS CONSISTENTLY RULED THAT THE PROPER FORUM IN WHICH TO RAISE
 THESE ISSUES IS THE UNFAIR LABOR PRACTICE PROCEEDINGS PURSUANT TO
 SECTION 7118 OF THE STATUTE. .  . . "
 
    THE UNION'S RESPONSE IN CASE NO. O-NG-328 /3/ CHARACTERIZES THE
 AGENCY'S ARGUMENT TO BE THAT MANAGEMENT "DOES NOT HAVE TO BARGAIN OVER
 THE (U)NION PROPOSALS BECAUSE THEY (DO) NOT RELATE TO CERTAIN CHANGES IN
 WORKING CONDITIONS PROPOSED BY THE (A)GENCY IN THE FORM OF A
 REORGANIZATION. . . . " THE UNION, HOWEVER, ASSERTS THAT "(T)HE
 OBLIGATION TO BARGAIN AT REASONABLE TIMES AND PLACES IS A CONTINUING
 ONE, AND LASTS THROUGH THE LIFE OF A CONTRACT," ABSENT A CLEAR AND
 UNMISTAKABLE WAIVER BY THE UNION WHICH THE AGENCY HAS NOT CLAIMED
 HEREIN.  ACCORDINGLY, THE UNION ARGUES THAT THE AGENCY SHOULD BE ORDERED
 TO BARGAIN CONCERNING THE UNION'S PROPOSALS.
 
    THUS, IT IS CLEAR THAT THE PRINCIPAL DISPUTE BETWEEN THE PARTIES IN
 THESE CASES CONCERNS THE NATURE AND EXTENT OF THE UNDERLYING OBLIGATION
 TO BARGAIN, NOT WHETHER THE PROPOSALS THEMSELVES ARE NEGOTIABLE.
 QUESTIONS CONCERNING WHETHER THE AGENCY IS OBLIGATED TO BARGAIN AT THIS
 TIME ON THE MATTERS RAISED BY THE UNION DO NOT FOCUS ON ISSUES
 APPROPRIATE FOR RESOLUTION UNDER THE PROCEDURES SET FORTH IN SECTION
 7117 OF THE STATUTE AND PART 2424 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.1 ET SEQ.), CONCERNING WHETHER PARTICULAR UNION
 PROPOSALS ARE THEMSELVES NONNEGOTIABLE, I.E., INCONSISTENT WITH LAW,
 RULE OR REGULATION.  RATHER, THE SUBSTANCE OF THE PARTIES' CONTENTIONS
 CONCERNS UNFAIR LABOR PRACTICE ISSUES APPROPRIATE FOR RESOLUTION UNDER
 PROCEDURES SET FORTH IN SECTION 7118 OF THE STATUTE.  THAT IS, 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.  IN THIS REGARD, RESOLUTION OF THE INSTANT
 DISPUTES MAY BE DEPENDENT UPON THE RESOLUTION OF FACTUAL ISSUES RELATED
 TO THE PARTIES' CONDUCT.  SUCH FACTUAL DETERMINATIONS CAN BEST BE
 ACCOMPLISHED THROUGH USE OF THE INVESTIGATORY AND FORMAL HEARING
 PROCEDURES SET FORTH IN PART 2423 OF THE AUTHORITY'S RULES AND
 REGULATIONS WHICH GOVERN UNFAIR LABOR PRACTICE PROCEEDINGS (5 CFR 2423.1
 ET SEQ.).  SEE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 1931 AND DEPARTMENT OF THE NAVY, NAVAL WEAPONS STATION, CONCORD,
 CALIFORNIA, 2 FLRA NO. 19(1979), NATIONAL TREASURY EMPLOYEES UNION AND
 DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, WASHINGTON, D.C., 3
 FLRA NO. 52(1980), AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 3403 AND NATIONAL SCIENCE FOUNDATION, WASHINGTON, D.C., 4 FLRA NO.
 77(1980), AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 2578 AND GENERAL SERVICES ADMINISTRATION, NATIONAL ARCHIVES AND
 RECORDS SERVICE, WASHINGTON, D.C., 4 FLRA NO. 84(1980).
 
    BASED ON THE FOREGOING, THESE NEGOTIABILITY APPEALS DO 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.
 ACCORDINGLY, IT IS ORDERED THAT THE UNION'S APPEAL BE DISMISSED WITHOUT
 PREJUDICE TO THE UNION'S RIGHT TO RESUBMIT TO THE AUTHORITY ANY
 NEGOTIABILITY DISPUTE WHICH REMAINS CONCERNING THE UNION'S PROPOSALS,
 AFTER RESORTING TO THE PROCEDURES DISCUSSED ABOVE.
 
    ISSUED, WASHINGTON, D.C., JUNE 11, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                                 APPENDIX
 
    PROPOSALS SUBMITTED BY AFGE IN CASE NO. O-NG-328
 
    1) THAT THE TRAINING AGREEMENT START WITH SELECTION INTO THE CONTACT
 REPRESENTATIVE POSITION, AFTER 18 MONTHS LEAD TO THE CLAIMS TECHNICIAN
 POSITION AND 12 MONTHS AFTER THAT LEAD TO THE CLAIMS EXAMINER POSITION
 UPON SATISFACTORY PERFORMANCE OF JOB CRITERIA.
 
    2) PERFORMANCE STANDARDS AND REQUIREMENTS SHOULD BE DEVELOPED FOR THE
 TRAINING AGREEMENT POSITIONS AND BARGAINED WITH LOCAL 32.
 
    3) ON THE JOB TRAINING AND TRAINING FROM GOVERNMENT AND
 NON-GOVERNMENT SOURCES WHICH WOULD ENHANCE THE SUCCESSFUL COMPLETION
 OF
 THE TRAINING AGREEMENT TO THE JOURNEYMAN LEVEL OF THE BRIDGE OR GOAL
 POSITION SHOULD BE PROVIDED BY THE EMP