International Federation of Professional and Technical Engineers, Local 9 (Union) and National Aeronautics and Space Administration (Agency)

 



[ v08 p109 ]
08:0109(22)NG
The decision of the Authority follows:


 8 FLRA No. 22
 
 INTERNATIONAL FEDERATION OF
 PROFESSIONAL AND TECHNICAL
 ENGINEERS, AFL-CIO, LOCAL 9
 (Union)
 
 and
 
 NATIONAL AERONAUTICS AND
 SPACE ADMINISTRATION
 (Agency)
 
                                            Case No. 0-NG-502
 
                          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 OF A NEGOTIABILITY ISSUE FILED BY THE
 INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS,
 AFL-CIO, LOCAL 9 (THE UNION).  FOR THE REASONS INDICATED BELOW, THE
 UNION'S PETITION MUST BE DISMISSED.
 
    THE RECORD BEFORE THE AUTHORITY INDICATES THAT A DISPUTE AROSE
 BETWEEN THE PARTIES CONCERNING THE AGENCY'S "PERFORMANCE APPRAISAL
 SYSTEM FOR NONSUPERVISORY EMPLOYEES" WHICH THE AGENCY HAD SUBMITTED TO
 THE UNION FOR COMMENT REGARDING IMPACT AND IMPLEMENTATION OF THE SYSTEM.
  FOLLOWING AN EXCHANGE OF CORRESPONDENCE AND DOCUMENTS AND APPARENTLY
 SOME MEETINGS, THE AGENCY NOTIFIED THE UNION THAT SINCE THE UNION
 "FAILED TO IDENTIFY AND ADDRESS ANY PROCEDURES OR MATTERS OF IMPACT
 RELATED TO THE IMPLEMENTATION OF THE PERFORMANCE SYSTEM WHICH WOULD
 IMPOSE AN OBLIGATION ON MANAGEMENT TO NEGOTIATE . . . (MANAGEMENT)
 REFUSES TO ENGAGE IN ANY FURTHER NEGOTIATIONS OR COMMUNICATIONS WITH THE
 (UNION) ABOUT THE LOCAL IMPACT AND IMPLEMENTATION OF THE PERFORMANCE
 SYSTEM." THE UNION THEN FILED THE INSTANT NEGOTIABILITY PETITION WITH
 THE AUTHORITY.  /1/
 
    IT APPEARS THAT THE ESSENCE OF THE DISPUTE BETWEEN THE PARTIES IN
 THIS CASE CONCERNS THE NATURE AND EXTENT OF THE UNDERLYING OBLIGATION TO
 BARGAIN, NOT WHETHER THE UNION'S PROPOSALS ARE NEGOTIABLE.  IT IS WELL
 ESTABLISHED THAT THE PROPER FORUM IN WHICH TO RESOLVE SUCH ISSUES IS NOT
 A NEGOTIABILITY APPEAL BUT, RATHER, AN UNFAIR LABOR PRACTICE PROCEEDING
 PURSUANT TO SECTION 7118 OF THE STATUTE.  IN THIS REGARD, RESOLUTION OF
 THE INSTANT DISPUTE MAY BE DEPENDENT UPON RESOLUTION OF FACTUAL ISSUES
 RELATED TO THE PARTIES' CONDUCT.  SUCH FACTUAL DETERMINATIONS CAN BEST
 BE ACCOMPLISHED THROUGH THE INVESTIGATORY AND FORMAL HEARINGS SET FORTH
 IN PART 2423 OF THE AUTHORITY'S RULES AND REGULATIONS WHICH GOVERN
 UNFAIR LABOR PRACTICE PROCEEDINGS.  (SEE 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.)
 
    BASED ON THE FOREGOING, THE NEGOTIABILITY APPEAL IN THE INSTANT CASE
 DOES NOT PRESENT ISSUES WHICH THE AUTHORITY CAN APPROPRIATELY RESOLVE AT
 THIS TIME UNDER SECTION 7117 OF THE STATUTE AND PART 2424 OF ITS RULES
 AND REGULATIONS.  ACCORDINGLY, WITHOUT PASSING ON THE MERITS OF THE
 DISPUTE, IT IS HEREBY ORDERED THAT THE INSTANT APPEAL BE, AND IT HEREBY
 IS, DISMISSED.
 
    FOR THE AUTHORITY.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 11, 1982
 
                   JAMES J. SHEPARD, EXECUTIVE DIRECTOR
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ IN ITS STATEMENT OF POSITION IN THE CASE, THE AGENCY CONTENDS,
 AMONG OTHER THINGS, THAT THE UNION DID NOT PROPERLY SERVE COPIES OF THE
 PETITION FOR REVIEW ON THE AGENCY IN ACCORDANCE WITH SECTION 2424.4(B)
 OF THE AUTHORITY'S RULES OF PROCEDURE, WHICH REQUIRES THAT A COPY OF THE
 PETITION BE SERVED ON THE AGENCY HEAD AND ON THE PRINCIPAL AGENCY
 BARGAINING REPRESENTATIVE AT THE NEGOTIATIONS.  IN THAT REGARD, THE
 UNION APPARENTLY SERVED THE PRINCIPAL BARGAINING REPRESENTATIVE AND THE
 AGENCY HEAD, THE THEN ACTING ADMINISTRATOR OF THE AGENCY, BUT THE AGENCY
 ASSERTS THAT THE ACTING ADMINISTRATOR WAS NOT THE PROPER PERSON FOR THE
 UNION TO SERVE SINCE THE AGENCY HAD DESIGNATED ANOTHER OFFICIAL TO
 RECEIVE SERVICE OF THE AGENCY HEAD'S COPIES OF NEGOTIABILITY PETITIONS
 AND THE UNION WAS AWARE OF THE DESIGNATION.  THE AGENCY'S CONTENTION IS
 WITHOUT MERIT.  SECTION 7117(C)(2)(B) OF THE STATUTE REQUIRES SERVICE OF
 A COPY OF PETITION ON THE "HEAD OF THE AGENCY" AND, AS INDICATED,
 SECTION 2424.4(B) OF THE AUTHORITY'S RULES OF PROCEDURE IMPLEMENTS THAT
 REQUIREMENT.  WHILE THE HEAD OF AN AGENCY MAY, FOR THE PURPOSE OF
 ADMINISTRATIVE CONVENIENCE OR EFFICIENCY OR FOR OTHER REASON, DESIGNATE
 A PARTICULAR OFFICIAL TO RECEIVE HIS OR HER COPIES OF NEGOTIABILITY
 APPEALS, AND WHILE THE AUTHORITY WILL ACCEPT A UNION'S SERVICE OF A COPY
 OF ITS APPEAL ON SUCH A DESIGNATED OFFICIAL AS SATISFYING THE
 REQUIREMENT OF THE STATUTE AND THE REGULATIONS, THE AUTHORITY WILL NOT
 POLICE OR ENFORCE SUCH DESIGNATIONS.  THUS, IF A UNION SERVES A COPY OF
 ITS APPEAL ON THE DESIGNATED OFFICIAL, THE SERVICE WILL BE CONSIDERED TO
 HAVE SATISFIED THE REQUIREMENT FOR SERVICE ON THE AGENCY HEAD.  HOWEVER,
 SUCH COOPERATION WITH A DESIGNATION BY A UNION, WHILE ARGUABLY
 DESIRABLE, IS NOT REQUIRED BY EITHER THE STATUTE OR THE AUTHORITY'S
 REGULATIONS.  HENCE, IF A UNION SERVES A COPY OF ITS PETITION ON THE
 ACTUAL HEAD OF THE AGENCY (IN ADDITION TO THE AGENCY'S PRINCIPAL
 BARGAINING REPRESENTATIVE), AS THE UNION IN THIS CASE APPEARS TO HAVE
 DONE, SUCH SERVICE MUST BE CONSIDERED TO FULLY CONFORM TO THE EXPRESS
 LANGUAGE OF THE APPLICABLE SERVICE REQUIREMENT, NOTWITHSTANDING ANY
 INTERNAL AGENCY DESIGNATION.  ACCORDINGLY, THE AGENCY'S ARGUMENT THAT
 THE UNION'S APPEAL IN THIS CASE SHOULD BE DISMISSED ON THE GROUND OF
 IMPROPER SERVICE IS REJECTED.