33:0192(22)NG - - NFFE Local 1900 and HUD - - 1988 FLRAdec NG - - v33 p192



[ v33 p192 ]
33:0192(22)NG
The decision of the Authority follows:


33 FLRA No. 22

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL

EMPLOYEES, LOCAL 1900

and

DEPARTMENT OF HOUSING AND URBAN

DEVELOPMENT

0-NG-1535

ORDER DISMISSING PETITION FOR REVIEW

October 17, 1988

Before Chairman Calhoun and Member McKee.

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 (the Statute). It concerns what the National Federation of Federal Employees, Local 1900 (the Union) represents as a proposal contained in a "Memorandum of Agreement." The wording claimed to be in dispute appears to require that vacancies first be advertised internally before seeking candidates from other sources. We find, for the following reasons, that there are no issues appropriate for resolution in a negotiability proceeding concerning whether the disputed wording is inconsistent with applicable law, rule or regulation. Consequently, we dismiss the appeal.

II. Background and "Proposal"

In its petition for review, the Union included a "Memorandum of Agreement" which apparently was the product of impact bargaining. As indicated in the following quotation, the parties disagreed over the negotiability of a requirement that unit vacancies first be advertised within the bargaining unit before seeking outside candidates.

One Union proposal which came up during the impact bargaining sessions was not resolved because Management considered it non-negotiable. Both parties have agreed to submit this proposal to an appropriate third party for resolution. This issue involves a Union request that future vacancies in the Property Sales Branch be advertised first through the internal HUD announcement process prior to Management considering candidates from outside HUD.

After reviewing the procedural aspects of the petition for review, we advised the Union that it had not complied with certain regulatory requirements, among which was a failure to provide a statement of the exact language of the proposal submitted to the Department of Housing and Urban Development (the Agency) for negotiation, as required by section 2424.4(a)(1) of our Rules and Regulations. The Union responded by amending its petition for review to indicate that the wording of the proposal, as submitted to the Agency for bargaining, was contained in the last sentence of the quotation set out above. According to the Union, the wording of the proposal was: "This issue involves a Union request that future vacancies in the Property Sales Branch be advertised first through the internal HUD announcement process prior to Management considering candidates from outside HUD." Amended Petition for Review at 1.

III. Positions of the Parties

The Agency claims that it and the Union are bound by procedures in an existing negotiated agreement concerning the filling of positions. According to the Agency, this agreement provides that the Agency has the right "to make selections for appointments from among properly ranked and certified candidates for promotion or from any other appropriate source[.]" Statement of Position at 1. The Agency also states that such right, under the agreement, "shall apply to all supplemental, implementing, subsidiary, or informal agreements[.]" Id. The Agency argues that the disputed wording imposes a constraint on its ability to hire which is contrary to the parties' agreement and, therefore, is nonnegotiable.

The Agency also argues that the appeal does not meet the requirements of section 2424.4(a)(1) of our Rules and Regulations because it does not contain a statement of the exact wording of the proposal submitted to the Agency for negotiation.

The Union did not file a reply brief. In its petition for review, the Union contends that the Agency has used an inordinate number of outside hires to the detriment of employees entitled to priority consideration or eligible for promotion. The Union argues that the disputed wording would remedy the described situation.

IV. Analysis and Conclusions

In our view, the Union has not fully clarified the question concerning the proposal's wording, as raised by our letter identifying the deficiencies in the original petition for review. Nevertheless, assuming without deciding that the wording referred to by the Union meets the requirements of section 2424.4(a)(1) of our Rules and Regulations, we find that there are no issues before us as to whether this wording conflicts with law, rule or regulation.

The Agency does not argue that the disputed wording is inconsistent with law, rule or regulation. The Agency argues only that the wording in question modifies a right granted to it by the parties' negotiated agreement and that such modification is foreclosed by the terms of that agreement.

In accordance with 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, l987).

Where the conditions for review of a negotiability appeal have been met, a union is entitled to a decision from us on whether a disputed proposal is negotiable under the Statute, although additional issues may exist, including, for example, whether an agency is obligated to bargain under the terms of a master 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, beyond those concerning a proposal's negotiability under the Statute, 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 prevent our determining the negotiability of proposals when the proposals' negotiability under the Statute is also at issue.

A different situation is presented, however, when the duty to bargain question is the only issue presented to us in a negotiability appeal. Neither the court's decision in AFGE, Local 2736 nor the Authority's holding in Wurtsmith addressed that situation. Here, as we noted, the Agency's only contention is that it is not obliged to bargain because the disputed wording conflicts with terms of the parties' existing negotiated agreement. Thus, there is no issue before us as to whether the disputed wording conflicts with law, rule or regulation, and there is no dispute appropriate for resolution in a negotiability appeal. Consequently, the conditions for review as described in Part 2424 of our Rules and Regulations have not been met and the appeal will be dismissed, without prejudicing the Union's right to file a later negotiability appeal, should it elect to do so, if the conditions governing review are met. See, for example, American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 26 FLRA 768, 769-70 (1987).

V. Order

The petition for review is dismissed without prejudice t