32:1214(161)NG - - AFGE, National Council of Field Labor Locals, Local 3181 and Labor, Mine Safety and Health Administration - - 1988 FLRAdec NG - - v32 p1214


[ v32 p1214 ]
32:1214(161)NG
The decision of the Authority follows:


32 FLRA No. 161

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

 

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO, NATIONAL

COUNCIL OF FIELD LABOR LOCALS

LOCAL 3181

Union

and 

U.S. DEPARTMENT OF LABOR, MINE

SAFETY AND HEALTH ADMINISTRATION

Agency

Case No. 0-NG-1522

ORDER DISMISSING PETITION FOR REVIEW

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute. It concerns two proposals which would establish criteria to define the local commuting area for certain employees whose permanent duty stations were changed.

For the reasons discussed below, we find that there are no issues before us as to whether the disputed proposals are inconsistent with applicable law, rule or regulation. Therefore, the appeal must be dismissed.

II. Background and Proposals

The two proposals contained in the petition for review respond to the Agency's definition of the local commuting area for its subdistrict office in Pineville, West Virginia. According to the record, the Agency decided to close a subdistrict office in Princeton, West Virginia, and consolidate its operations with those of an office located in Pineville.

The parties met and successfully negotiated a memorandum of understanding concerning the closing of the Princeton office and the move to Pineville. As indicated in an unfair labor practice charge later filed by the Union, the negotiations leading to the memorandum "did not include discussion regarding transfer of function, commuting area, or severance pay." Attachment 3 to Agency letter of May 2, 1988. Thereafter, the Agency determined that both Princeton and Pineville should be included in the same local commuting area. The record reflects that the two offices previously were in separate local commuting areas. According to the Union, the Agency's decision had significant implications for employees of the Princeton office with respect to such matters as their entitlement to moving expenses. Reply Brief at 18-22.

Learning of the change in the commuting areas, the Union filed an unfair labor practice charge alleging that it was not officially notified of nor given the opportunity to bargain over the change. The parties resolved the dispute with a settlement agreement, dated June 2, 1987. They agreed to negotiate "concerning the impact and implementation of the [Agency's] decision to change the commuting area." Attachment 1 to Agency letter of May 2, 1988.

The parties subsequently met as provided for in the settlement agreement, but reached no accord on any matters presented. The Union then filed another unfair labor practice charge alleging that the Agency had failed to bargain in good faith. The Authority's Regional Director declined to issue a complaint on the ground that the Union proposals "address the substance, not the impact and implementation of the Activity's decision" and, therefore, were beyond the scope of the bargaining obligation, as defined by the prior settlement agreement. Union reply brief at 10.

Among the Union proposals presented at the bargaining session held pursuant to the settlement agreement are those which are the subject of this appeal:

A. Proposal 1

(2) The definition of a commuting area shall be determined to be 10 miles within the radius of the permanent duty station for PCS [permanent change of station] purposes.

B. Proposal 2

The commuting area as per item (2) shall be defined on a case-by-case basis and take into consideration:

(1) Economic conditions,

(2) Availability of public transportation,

(3) Road conditions and terrain,

(4) Accessibility to public schools, churches, medical facilities and availability of housing.

III. Positions of the Parties (*)

A. The Agency

The Agency contends that this appeal is not properly before us. It asserts that it has never advised the Union that the disputed proposals were inconsistent with applicable law, rule or regulation. Rather, the Agency states that it has consistently maintained that it has no duty to bargain over the proposals. The Agency points out that in the settlement agreement reached by the parties subsequent to the Union's filing an unfair labor practice charge against the Agency, the Union agreed to bargain with management solely over the impact and implementation of the decision to consolidate the Princeton and Pineville commuting areas. In signing the settlement agreement, the Agency asserts that the Union waived its right to negotiate over the substance of the Agency's commuting area decision, and that the two proposals in dispute concern the substance of that decision.

B. The Union

The Union asserts that the petition for review is properly before us. It argues that the Agency head's refusal to state expressly that the proposals were nonnegotiable was, in effect, a finding that the proposals were nonnegotiable, and that the settlement agreement was not a waiver of its right to bargain on the substance of management's decision to consolidate the two commuting areas.

The Union reasons that the Agency's lack of responsiveness to the Union's request for an allegation of nonnegotiability constituted a constructive declaration that the proposals are nonnegotiable. The Union also asserts that the Agency's claim that the proposals concern the substance of its commuting area decision "is nothing more than an allegation that the union's proposals are in violation of section 7106(a) or section 7106(b)(1) of the Statute." Reply Brief at 6. Additionally, the Union states that an Agency representative orally declared during collective bargaining that the proposals interfered with management's rights. It views the Agency's failure to disavow that alleged oral declaration in its written response to the request for an allegation as ratification of the Agency representative's oral position.

The Union contends that the settlement agreement obliged the Agency to bargain over negotiable matters relating to the impact and implementation of its decision, and "any proposals proffered by the union which were otherwise within the duty to bargain." Reply Brief at 11. The Union concedes that the Agency's decision to close the Princeton office was nonnegotiable as a management right. However, it asserts that "the union has the right to bargain on the 'impact and implementation' of that decision with respect to the decision to close, and fully on the determination of the commuting area." [Emphasis in the original.] Reply Brief at 12.

IV. Analysis and Conclusions

A. Factors Governing the Jurisdictional Question

Under section 7117 of the Statute and Part 2424 of our Rules and Regulations, we will consider a petition for review of a negotiability issue only where the parties disagree over whether a proposal is inconsistent with law, rule or regulation. See Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 628, 636-37 (1987), petition for review filed sub nom. Overseas Education Association, Inc. v. FLRA, No. 87-1575 (D.C. Cir. Oct. 14, 1987).

Where the conditions for review of negotiability issues have been met, a union is entitled to a decision from us as to whether a proposal is negotiable under the Statute, despite the presence of additional issues in the case, for example, an alleged conflict between a proposal and a controlling agreement. See American Federation of Government Employees, Local 2736 v. FLRA, 715 F.2d 627, 631 (D.C. Cir. 1983) (AFGE, Local 2736). To the extent that there are additional issues regarding the duty to bargain in the specific circumstances of a case, those issues should be resolved in other appropriate proceedings. See American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984) (Wurtsmith). Accordingly, the claimed existence of threshold duty to bargain questions does not preclude our determining the negotiability of proposals that are otherwise properly before us.

A different situation is presented, however, when threshold duty to bargain issues are raised concerning a proposal and the conditions for review of the negotiability issue have not been met. Neither the court's decision in AFGE, Local 2736 nor the Authority's decision in Wurtsmith addressed that situation. Here, as noted, the Agency contends only that it is not obligated to bargain over the proposals because the settlement agreement is a waiver of the Union's right to negotiate on the subject matter of the proposals. The Agency expressly declines to argue that the proposals conflict with law, rule or regulation. Thus, as reflected in the parties' arguments, the crucial first question to be answered is whether there is a real dispute over the proposal's conflict with law, rule or regulation. See also, American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 26 FLRA 768, 769-70 (1987) (Department of Labor).

B. The Petition Does Not Satisfy Jurisdictional Requirements

1. The Agency's Response to the Union's Request for an Allegation Does Not Constitute a Constructive Determination of Nonnegotiability

We reject the Union's argument that the Agency's refusal to declare the proposals either negotiable or nonnegotiable constituted a constructive declaration of nonnegotiability. The record does not support the Union's suggested construction. The Agency provided a written response to the Union's request for an allegation of nonnegotiability. The Agency's response stated that it had no duty to bargain over the disputed proposals because of the prior settlement agreed to by the Union. The Agency did not state that the disputed proposals were nonnegotiable under law, rule or regulation. Therefore, the circumstances here are unlike those covered by section 2424.3 of our Rules and Regulations which treats an agency's failure to respond in a timely manner to a union's written request for an allegation as a constructive declaration of nonnegotiability. See, for example, Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 21 FLRA 580, 581 (1986).

Also, the Agency, in its statement of position responding to the petition for review, again relied exclusively on the settlement agreement, stating that "at no time during or subsequent to the July, 1987 negotiations where the proposals at issue herein were presented to the agency did the agency advise the union or declare any of the union's proposals to be non-negotiable." Statement of Position at 1. Therefore, in our view, the Agency's response to the Union's request cannot be deemed a declaration of nonnegotiability--constructive or otherwise. Rather, the Agency's allegation fully set out its position on the proposals. That position did not include a contention that the proposals were nonnegotiable.

The Agency's acknowledgement that the disputed proposals concern the substance of its decision to consolidate the two commuting areas does not constitute an allegation that the proposals are nonnegotiable. That acknowledgement relates only to its position that the two proposals were removed from the duty to bargain by the settlement agreement.

2. The Alleged Oral Statement Concerning the Proposals' Negotiability Does Not Constitute an Allegation of Nonnegotiability within the Meaning of Section 2424.3 of our Rules and Regulations

Notwithstanding the Agency's position that it never declared the proposals to be nonnegotiable, the Union claims that an Agency representative at the bargaining table orally declared that the proposals interfered with management rights. In support of this claim, the Union submitted statements from Union representatives who were present at the bargaining session in question. Attachments to Union letter of May 5, 1988. In further support of its claim, the Union later furnished the affidavit of one of its headquarters employees. Attachment to Union letter of May 23, 1988. We again note that the Agency denies that any such oral declaration was made at the bargaining session, or at any time subsequent to the session.

Even if an oral declaration of nonnegotiability had been made at the bargaining session, our Rules and Regulations provide for the resolution of negotiability appeals on the basis of the written record, unless we find it appropriate to hold a hearing. See Part 2424 of our Rules and Regulations. Specifically, section 2424.3 of our Rules requires that "the agency shall make the allegation [of nonnegotiability] in writing and serve a copy on the exclusive representative." Thus, whatever may have transpired in oral exchanges between the parties at the bargaining table is not material to the resolution of a negotiability appeal. See National Federation of Federal Employees, Local 1650 and U.S. Forest Service, Angeles National Forest, 12 FLRA 611, footnote at 611 (1983) (Authority noted that time limit, under section 2424.3 of the Rules, begins to run from date agency's written allegation is served on union--not from date agency makes oral allegation).

Moreover, the Agency did respond in writing to the Union's request for an allegation of nonnegotiability by stating that its refusal to bargain over the proposals was based on the fact that they concerned the substance of the decision to modify the commuting areas, and, consequently, were beyond the scope of the applicable settlement agreement. The Agency reiterated its position in its statement of position, noting that it "has not challenged any of the [U]nion's proposals on the basis that they are inconsistent with law, rule or regulation."

3. Questions as to the Scope of the Duty to Bargain under a Settlement Agreement Are Not Appropriate for Resolution in a Negotiability Appeal

As previously noted, the Agency's position that it is under no obligation to bargain on the disputed proposals is based on a settlement agreement with the Union, arranged with the aid of the Authority's regional office. That document, dated June 2, 1987, states, "The Department agrees to bargain with the [Union] concerning the impact and implementation of its decision to change the commuting area." Also, as we noted above, in a bargaining session subsequent to the settlement agreement, the Agency refused to bargain over proposals, including the ones at issue here, addressing the substance of the decision to consolidate the two commuting areas. In declining to bargain, the Agency relied on the terms of the settlement agreement.

The question of whether the Agency was justified in basing its refusal to bargain over the proposals on the terms of the settlement agreement is not appropriate for resolution in an negotiability appeal. Rather, that issue is appropriate for resolution in an unfair labor practice proceeding. We note that, after the Agency refused to bargain on the proposals at issue because it viewed them as going beyond the scope of the settlement agreement, the Union filed an unfair labor practice charge alleging that the Agency refused to bargain in good faith. The Regional Director refused to issue a complaint, finding that the Agency properly declined to bargain on the proposals which went beyond the scope of the settlement agreement. The record does not indicate that the Union appealed the Regional Director's action.

In summary, we find that, in these circumstances, there is no issue before us concerning the negotiability of the proposals themselves. Therefore, the conditions governing review of negotiability issues, as described in section 2424.1 of our Rules and Regulations have not been satisfied. See American Federation of Government Employees, AFL-CIO, Local 3369 and Social Security Administration, Midtown District Office, 31 FLRA 1114 (1988).

Accordingly, we will dismiss the Union's petition for review, without prejudice to the Union's right to file a negotiability appeal if the conditions governing review of negotiability issues are met and if the Union chooses to file an appeal. See<