National Federation of Federal Employees, Local 1454 (Union) and U.S. Veterans Administration, Regional Office, Houston, Texas (Activity) 



[ v06 p572 ]
06:0572(104)NG
The decision of the Authority follows:


 6 FLRA No. 104
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1454
 (Union)
 
 and
 
 U.S. VETERANS ADMINISTRATION
 REGIONAL OFFICE, HOUSTON, TEXAS
 (Activity)
 
                                            Case No. O-NG-379
 
                          ORDER DISMISSING APPEAL
 
    THIS CASE IS BEFORE THE AUTHORITY PURSUANT TO SECTION 7105(A)(2)(E)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101
 ET SEQ.) ON A PETITION FOR REVIEW FILED BY THE UNION.  FOR THE REASONS
 INDICATED BELOW, THE UNION'S APPEAL MUST BE DISMISSED.
 
    IT APPEARS FROM THE UNION'S APPEAL THAT THE UNION SOUGHT TO NEGOTIATE
 ON THE IMPACT OF THE ACTIVITY'S SELECTION OF CERTAIN EMPLOYEES TO
 REPRESENT THE AGENCY IN MEXICO.  THE ACTIVITY DECLINED TO NEGOTIATE,
 INFORMING THE UNION THAT THE MATTER WAS NOT "A SUBJECT FOR NEGOTIATION
 UNDER OUR CONTRACT OR CURRENT LAW." THE ACTIVITY FURTHER INFORMED THE
 UNION IN ITS RESPONSE TO THE UNION'S REQUEST THAT THE UNION SHOULD
 ADVISE THE ACTIVITY OF ANY PROVISION IN EITHER THE PARTIES' AGREEMENT OR
 LAW WHICH THE UNION BELIEVED MANDATED BARGAINING ON THE MATTER AND THE
 ACTIVITY WOULD REVIEW SUCH PROVISION.  THE ACTIVITY APPARENTLY THEN
 IMPLEMENTED ITS SELECTION DECISION AND THE UNION FILED THE INSTANT
 PETITION FOR REVIEW WITH THE AUTHORITY.  /1/
 
    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.  THUS, IT APPEARS THAT THE ESSENCE OF THE DISPUTE
 BETWEEN THE PARTIES CONCERNS THE QUESTION ON THE ACTIVITY'S OBLIGATION
 TO BARGAIN AND NOT THE NEGOTIABILITY OF A PARTICULAR PROPOSAL.  /2/ IT
 IS NOW WELL-ESTABLISHED THAT THE PROPER FORUM IN WHICH TO RESOLVE SUCH A
 QUESTION IS NOT A NEGOTIABILITY CASE, BUT RATHER AN UNFAIR LABOR
 PRACTICE PROCEEDING PURSUANT TO SECTION 7118 OF THE STATUTE AND PART
 2423 OF THE AUTHORITY'S RULES AND REGULATIONS.  SEE, E.G., AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF
 PERSONNEL MANAGEMENT, WASHINGTON, D.C., 6 FLRA NO. 15(1981), AND CASES
 CITED THEREIN.  IN THAT REGARD, RESOLUTION OF THE INSTANT DISPUTE MAY BE
 DEPENDENT UPON THE RESOLUTION OF FACTUAL ISSUES RELATING TO THE PARTIES'
 CONDUCT.  SUCH FACTUAL DETERMINATIONS CAN BEST BE ACCOMPLISHED THROUGH
 USE OF INVESTIGATORY AND FORMAL HEARING PROCEDURES ESTABLISHED UNDER THE
 STATUTE AND THE AUTHORITY'S RULES AND REGULATIONS.
 
    ADDITIONALLY, TO THE EXTENT THAT THE DISPUTE INVOLVES A QUESTION OF
 INTERPRETATION OF A COLLECTIVE BARGAINING AGREEMENT BETWEEN THE PARTIES,
 THE PROPER FORUM IN WHICH TO RESOLVE SUCH AN ISSUE WOULD BE PURSUANT TO
 WHATEVER PROCEDURES THE PARTIES HAVE ADOPTED FOR SUCH PURPOSES IN THEIR
 AGREEMENT.  SEE, E.G., NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
 LOCAL R14-62 AND UNITED STATES ARMY, DUGWAY PROVING GROUND, DUGWAY,
 UTAH, 3 FLRA NO. 107(1980), AND CASES CITED THEREIN.
 
    BASED ON THE FOREGOING, AS THE UNION'S APPEAL DOES NOT PRESENT ISSUES
 THAT THE AUTHORITY CAN APPROPRIATELY RESOLVE AT THIS TIME UNDER SECTION
 7117 OF THE STATUTE, AND APART FROM OTHER CONSIDERATIONS,
 
    IT IS HEREBY ORDERED THAT THE UNION'S APPEAL BE, AND IT HEREBY IS,
 DISMISSED, WITHOUT PREJUDICE TO THE FILING OF AN UNFAIR LABOR PRACTICE
 CHARGE BY THE UNION IN THE APPROPRIATE REGIONAL OFFICE OF THE AUTHORITY
 AND TO THE PROCESSING OF SUCH A CHARGE.
 
    FOR THE AUTHORITY.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 18, 1981
 
                   JAMES J. SHEPARD, EXECUTIVE DIRECTOR
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE UNION ATTACHED A COPY OF AN UNFAIR LABOR PRACTICE CHARGE FORM
 (FLRA FORM 22) TO ITS PETITION, WHEREIN THE UNION CHARGED THE ACTIVITY
 WITH VIOLATIONS OF SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE FOR
 THE ALLEGED UNLAWFUL CONDUCT.  HOWEVER, WE HAVE BEEN ADVISED THAT THE
 CHARGE WAS NEVER FILED IN THE APPROPRIATE REGIONAL OFFICE OF THE
 AUTHORITY, I.E., REGION 6, DALLAS, TEXAS.
 
    /2/ THE UNION DID NOT PROPOSE SPECIFIC LANGUAGE FOR NEGOTIATION IN
 ITS REQUEST TO THE ACTIVITY.  THUS, THE MATTER HERE IN DISPUTE IS NOT,
 IN ANY EVENT, SUFFICIENTLY DELINEATED SO AS TO PROVIDE A BASIS FOR A
 NEGOTIABILITY DETERMINATION.  IN THIS REGARD, IT IS WELL ESTABLISHED
 THAT A PETITION FOR REVIEW OF A NE