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



[ v08 p134 ]
08:0134(26)NG
The decision of the Authority follows:


 8 FLRA No. 26
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 1363
 Union
 
 and
 
 HEADQUARTERS, U.S. ARMY 
 GARRISON, YONGSAN, KOREA
 Agency
 
                                            Case No. 0-NG-173
 
                   ORDER DISMISSING NEGOTIABILITY APPEAL
 
    THE PETITION FOR REVIEW IN THIS CASE COMES 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 - 7135).
 
    THIS APPEAL WAS FILED BASED ON THE AGENCY'S ALLEGATION THAT IT DID
 NOT HAVE A DUTY TO BARGAIN OVER A UNION PROPOSAL CONCERNING THE
 ALLOCATION OF GOVERNMENT-CONTROLLED FAMILY HOUSING WITH RESPECT TO
 CIVILIAN EMPLOYEES IN THE AGENCY.  SUBSEQUENTLY, THE UNION ALSO FILED
 WITH THE AUTHORITY CHARGES THAT THE AGENCY HAD COMMITTED AN UNFAIR LABOR
 PRACTICE BY ALLEGEDLY IMPLEMENTING AN ALLOCATION OF FAMILY HOUSING
 WITHOUT NEGOTIATING WITH THE UNION.  PURSUANT TO SECTIONS 2423.5 AND
 2424.5 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2423.5,
 2424.5(1981)), THE UNION SELECTED TO PROCEED UNDER THE UNFAIR LABOR
 PRACTICE CHARGE AND TO SUSPEND FURTHER ACTION ON THE NEGOTIABILITY
 APPEAL.
 
    UPON INVESTIGATION, THE REGIONAL DIRECTOR CONCLUDED THAT FURTHER
 PROCEEDINGS ON THE UNION'S CHARGE WAS NOT WARRANTED.  SPECIFICALLY, THE
 REGIONAL DIRECTOR DETERMINED THAT THE AGENCY'S "EXISTING POLICY
 REGARDING THE OCCUPANCY OF GOVERNMENT OWNED OR LEASED HOUSING (H)AS
 REMAINED UNCHANGED." THUS, WITHOUT READING THE QUESTION RAISED IN THE
 NEGOTIABILITY APPEAL OF WHETHER THE ALLOCATION OF FAMILY HOUSING
 CONSTITUTES A CONDITION OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES, THE
 REGIONAL DIRECTOR DETERMINED THAT, IN ANY EVENT, NO CHANGE IN AGENCY
 POLICY HAD OCCURRED AND, THEREFORE, THE AGENCY HAD NO OBLIGATION TO
 BARGAIN OVER PROPOSALS RELATING TO THAT POLICY.  NO APPEAL OF THE
 REGIONAL DIRECTOR'S DETERMINATION WAS TAKEN TO THE GENERAL COUNSEL.
 
    IN THE ABSENCE OF A DUTY TO BARGAIN BETWEEN THE PARTIES TO THIS CASE,
 ISSUES AS TO THE SCOPE OF BARGAINING, I.E., WHETHER THE PROPOSAL IN
 DISPUTE HEREIN CONCERNS THE CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT
 EMPLOYEES, ARE NOT APPROPRIATE FOR RESOLUTION BY THE AUTHORITY.  FOR THE
 FOREGOING REASONS, IT IS CONCLUDED THAT THE NEGOTIABILITY ISSUE RAISED
 IN THE INSTANT APPEAL WAS RENDERED MOOT BY THE REGIONAL DIRECTOR'S
 DECISION THAT THE AGENCY'S POLICY REGARDING THE ALLOCATION OF FAMILY
 HOUSING HAD NOT BEEN CHANGED AND, THEREFORE, THAT THE AGENCY WAS NOT
 OBLIGATED TO BARGAIN OVER UNION PROPOSALS CONCERNING THAT POLICY.  CF.
 OVERSEAS EDUCATION ASSOCIATION AND DEPARTMENT OF DEFENSE, OFFICE OF
 DEPENDENTS SCHOOLS, ALEXANDRIA, VIRGINIA, 7 FLRA NO.  11(1981)
 (NE