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



[ v06 p562 ]
06:0562(101)NG
The decision of the Authority follows:


 6 FLRA No. 101
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1363
 Union
 
 and
 
 HEADQUARTERS, U.S. ARMY GARRISON,
 YONGSAN, KOREA
 Activity
 
                                            Case No. O-NG-271
 
                DECISION AND ORDER ON NEGOTIABILITY APPEAL
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE).
 
    THE RECORD REVEALS THAT THE UNION INITIALLY FILED A CHARGE OF UNFAIR
 LABOR PRACTICE IN CASE NO. 8-CA-172 ALLEGING THAT THE EIGHTH U.S. ARMY,
 OF WHICH THE ACTIVITY IS A COMPONENT, ESTABLISHED A NEW PRACTICE FOR
 REMOVING EMPLOYEES FROM THE REPUBLIC OF KOREA AND APPLIED THE NEW
 PRACTICE IN REMOVING AN AIR FORCE EMPLOYEE WITHOUT NEGOTIATING WITH THE
 UNION CONCERNING THIS NEW POLICY.  THE AUTHORITY'S REGIONAL DIRECTOR
 DISMISSED THE FOREGOING CHARGE ON THE BASIS THAT THE REMOVAL ACTION
 CONCERNED AN EMPLOYEE WHO WAS NEITHER EMPLOYED BY THE EIGHTH U.S. ARMY
 NOR IN A UNIT REPRESENTED BY THE UNION, AND, FURTHER, THAT THE REMOVAL
 ACTION APPEARED TO BE AN ISOLATED INCIDENT RATHER THAN A NEW POLICY.
 
    THREE DAYS PRIOR TO THE ISSUANCE OF THE REGIONAL DIRECTOR'S
 DISMISSAL, THE UNION SUBMITTED AN OFFER OF SETTLEMENT TO THE ACTIVITY IN
 WHICH IT AGREED TO WITHDRAW THE UNFAIR LABOR PRACTICE CHARGE IF THE
 ACTIVITY WOULD TAKE CERTAIN ACTIONS INCLUDING THE NEGOTIATION OF A SET
 OF "PROPOSALS" WHICH DEALT ESSENTIALLY WITH THE ISSUE OF REMOVAL OF
 EMPLOYEES.  NO RESPONSE WAS PROVIDED BY THE ACTIVITY TO THIS OFFER OF
 SETTLEMENT AND, AS NOTED ABOVE, THE CHARGE WAS DISMISSED BY THE REGIONAL
 DIRECTOR SHORTLY AFTER THIS OFFER WAS MADE.
 
    THE UNION APPEALED THE REGIONAL DIRECTOR'S DISMISSAL TO THE GENERAL
 COUNSEL AND CONCURRENTLY FILED A PETITION FOR REVIEW OF NEGOTIABILITY
 ISSUES WITH THE AUTHORITY.  PURSUANT TO SECTION 2424.5 OF THE
 AUTHORITY'S RULES AND REGULATIONS, THE UNION ELECTED TO PROCEED FIRST
 WITH ITS NEGOTIABILITY APPEAL;  UNDER SECTION 2423.5 OF THE AUTHORITY'S
 RULES AND REGULATIONS, THE UNION FURTHER REQUESTED THAT THE APPEAL
 SUBMITTED TO THE GENERAL COUNSEL BE HELD IN ABEYANCE.
 
    WITH REGARD TO THE PETITION FOR REVIEW CURRENTLY BEFORE THE
 AUTHORITY, THE DEPARTMENT OF THE ARMY (AGENCY) CONTENDS, AMONG OTHER
 THINGS, THAT THE QUESTION OF NEGOTIABILITY IS NOT PROPERLY BEFORE THE
 AUTHORITY BECAUSE THE PARTIES HAVE NOT BEEN ENGAGED IN, AND NO PROPOSALS
 HAVE BEEN ADVANCED IN THE CONTEXT OF, COLLECTIVE BARGAINING;  RATHER,
 THE AGENCY ASSERTS THAT THE "PROPOSALS" WERE PROFFERED IN AN OFFER OF
 SETTLEMENT MADE IN CONNECTION WITH THE PENDING UNFAIR LABOR PRACTICE
 CHARGE IN CASE NO. 8-CA-172.  IN RESPONSE, THE UNION STATES THAT ITS
 OFFER OF SETTLEMENT WAS SUBMITTED TO THE ACTIVITY UNDER SECTION 2423.11
 OF THE AUTHORITY'S RULES AND REGULATIONS WHICH REFLECTS THE AUTHORITY'S
 POLICY OF EMPHASIZING THE INFORMAL SETTLEMENT OR ADJUSTMENT OF ISSUES,
 AND THAT THE AGENCY'S POSITION THAT THE PARTIES HAVE NOT BEEN INVOLVED
 IN COLLECTIVE BARGAINING REFLECTS THE VERY ATTITUDE WHICH LED THE UNION
 TO FILE ITS UNFAIR LABOR PRACTICE CHARGE AGAINST THE ACTIVITY IN THE
 FIRST INSTANCE.  FOR THE FOLLOWING REASONS, THE AUTHORITY FINDS THAT THE
 UNION'S PETITION FOR REVIEW HEREIN IS NOT PROPERLY BEFORE THE AUTHORITY
 AT THIS TIME.
 
    ON THE BASIS OF THE RECORD, IT APPEARS THAT THE PRINCIPAL DISPUTE
 BETWEEN THE PARTIES CONCERNS THE NATURE AND EXTENT OF THE UNDERLYING
 OBLIGATION TO BARGAIN, NOT WHETHER THE PROPOSALS ARE THEMSELVES
 NEGOTIABLE.  THUS, AS NOTED ABOVE, THE UNION HAS ALLEGED IN BOTH ITS
 UNFAIR LABOR PRACTICE CHARGE AND ITS SUBMISSIONS TO THE AUTHORITY UNDER
 SECTION 7117 OF THE STATUTE THAT THE AGENCY REFUSED TO BARGAIN OVER THE
 ESTABLISHMENT OF WHAT THE UNION VIEWS AS A NEW REMOVAL POLICY AFFECTING
 UNIT EMPLOYEES, WHILE THE AGENCY HAS CONTENDED, IN EFFECT, THAT THERE
 WAS NO OBLIGATION TO BARGAIN AND THEREFORE NO BARGAINING HAS TAKEN
 PLACE.  ALSO, IT APPEARS THAT THE PARTIES ARE IN DISAGREEMENT AS TO THE
 OBLIGATION TO BARGAIN ON MATTERS RAISED IN AN OFFER OF SETTLEMENT MADE
 IN CONNECTION WITH AN OUTSTANDING UNFAIR LABOR PRACTICE CHARGE.
 QUESTIONS CONCERNING WHETHER THE ACTIVITY IS OBLIGATED TO BARGAIN ON
 MATTERS SUCH AS THESE 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 AS TO WHETHER A PARTICULAR
 UNION PROPOSAL IS ITSELF 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 UNDER 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.  NATIONAL TREASURY EMPLOYEES UNION AND NTEU
 CHAPTER 12 AND DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
 BIRMINGHAM DISTRICT, ALABAMA, 2 FLRA NO.  64(1980).  IN THIS REGARD, IT
 IS NOTED THAT THE UNION INVOKED SUCH UNFAIR LABOR PRACTICE PROCEDURES BY
 FILING A CHARGE BASED ON THE ACTIVITY'S ALLEGED REFUSAL TO BARGAIN OVER
 THE REMOVAL POLICY, WHICH PROCEEDING IS PENDING BEFORE THE GENERAL
 COUNSEL ON APPEAL.
 
    BASED ON THE FOREGOING, THIS NEGOTIABILITY APPEAL DOES NOT PRESENT
 ISSUES THAT