45:0691(61)NG - - AFGE Local 1864 and Navy, Charleston Naval Shipyard, Charleston, SC - - 1992 FLRAdec NG - - v45 p691
[ v45 p691 ]
The decision of the Authority follows:
45 FLRA No. 61
The Union has filed a petition for review of negotiability issues in this case. The Agency filed a statement of position and the Union filed a reply brief. For the reasons set forth below, the Union's petition for review is dismissed without prejudice to the Union's right to file another petition for review at such time as the conditions governing review are met.
According to the Agency, the nature of the work that is performed at the Charleston Naval Shipyard is such that the workload varies widely and is influenced by the number of ships that are undergoing repair or overhaul and the particular work that is being performed at a given time. The Agency established the Special Projects Work Center (SPWC) "to provide a method of coordinating the temporary assignment of employees, who are temporarily not needed in their regular job, to work projects where their services are needed." Statement of Position at 1. The SPWC originally was established to accommodate Wage Grade employees and subsequently was expanded to cover all employees at the Shipyard, including General Schedule employees. In the negotiations over the impact and 1kplementation of the expansion of the SPWC program, the Union submitted, among others, the proposals that are the subject of the petition in this case.
According to the Agency, the parties negotiated from January 17 to March 5, 1991, over the plan to expand the coverage of the SPWC. The Agency states that on March 6, 1991, it informed the Union that it planned to implement the SPWC policy "in ten days pursuant to the provisions to which the [U]nion had agreed and its last best offers." Id. at 2. The Agency implemented the expansion of the SPWC program as planned. Subsequent to the implementation, on April 12, 1991, the Union sought the assistance of the Federal Service Impasses Panel (FSIP). The FSIP ultimately declined jurisdiction. On April 11, 1991, the Union filed an unfair labor practice charge concerning the implementation of the expansion of the SPWC. On August 12, 1991, the Authority's Acting Regional Director issued a decision in the unfair labor practice case refusing to issue a complaint. The Union appealed the dismissal of the unfair labor practice charge.
By letter dated December 19, 1991, the Union requested a written allegation of nonnegotiability on seven proposals that had been put forth during the collective bargaining over the expansion of the SPWC. By letter dated January 9, 1992, the Agency informed the Union that its request did not meet the requirements of section 2424.1 of the Authority's regulations for a negotiability appeal based on the Agency's contention that the parties were not "involved in collective bargaining." Petition Attachment 2 at 1. The Union then filed the instant petition with the Authority.
The Agency contends that the Union's negotiability appeal is not properly before the Authority because the Union waited until 9 months after the conclusion of bargaining and the implementation of the new SPWC policy to institute an appeal by requesting a written allegation of nonnegotiability. Quoting section 7117(c)(1) of the Federal Service Labor-Management Relations Statute (the Statute) and section 2424.1 of the Authority's Rules and Regulations, the Agency contends that in order for an appeal to be valid the parties must be "involved in collective bargaining" over the subject of the proposals. The Agency argues that in this case negotiations have been completed.
The Union contends that there is no time limit for initiating a request for allegations of nonnegotiability and that it is entitled to a decision on the merits of an allegation of nonnegotiability regardless of subsequent events that may have transpired. In support of this latter contention the Union cites the Authority's decisions in Overseas Education Association and Department of Defense Dependents Schools, 39 FLRA 153, 178-79 (1991) (DODDS), and International Association of Machinists and Aerospace Workers, Local Lodge 2424 and U.S. Department of the Army, Aberdeen Proving Ground, Maryland, 33 FLRA 512, 519 (1988) (Aberdeen).
The Union contends that as long as the SPWC is viable, its interest includes "substantively resolving the negotiability of the disputed proposals." Reply Brief at 5. Further, the Union states:
As the record reflects, there is a charge of unfair labor practice pending before the General Counsel of the Authority; a favorable resolution of that charge will permit [the Union] to demand resumed negotiations on the SPWC with the Charleston Naval Shipyard, in the course of which [the Union] will propose to negotiate concerning, inter alia, the disputed language that is before the Authority in this case. Furthermore, should resumed bargaining concerning the SPWC not be an outcome of the pending unfair labor practice charge, [the Union] will propose to negotiate concerning the SPWC in either union-initiated midterm negotiations or as part of the negotiations of the next term agreement between the parties.
On May 12, 1992, the Authority's General Counsel denied the Union's appeal from the Acting Regional Director's decision not to issue complaint in the unfair labor practice charge referred to above. Charleston Naval Shipyard, Charleston, South Carolina, Case No. 4-CA-10474.
The Union's statements and the General Counsel's actions compel a conclusion that the negotiations over the expansion of the SPWC have effectively terminated. It is inconsistent with the policies of the Statute and the Authority's regulations requiring the expeditious resolution of negotiability issues to issue decisions where it is established that collective bargaining over the subject that
is the focus of the proposals in dispute has terminated.1/ Expending the Authority's resources on proposals that are not the subject of a currently pending demand for collective bargaining detracts from the Authority's ability to meet its obligation to resolve negotiability issues in an expeditious manner in cases that involve needs for dispute resolution that are both real and immediate.
In cases where the Authority has rendered a decision on the merits of a negotiability appeal notwithstanding the claimed existence of threshold duty to bargain question, the questions were unresolved at the time of the Authority's decision. See, for example, National Air Traffic Controllers Association, Local C90 and U.S. Department of Transportation, Federal Aviation Administration, 45 FLRA No. 37, slip op. at 3-5 (1992). Here, there is no longer any question regarding the status of the negotiations concerning the expansion of the SPWC. The Union concedes that resumption of the negotiations was dependent on a favorable disposition of its appeal in an unfair labor practice case. That appeal has been denied. Consequently, those negotiations have terminated.
The Union indicates that it is likely that it will propose to negotiate concerning the SPWC in the future. At this point in time, however, the occurrence of such negotiations is speculative. Even more speculative is whether such future negotiations would include the particular proposals that are the subject of the petition in this case. There is the distinct possibility that actual experience under the expanded SPWC will result in modifications in the content of any proposals that might be presented in the future. See Alton & Southern Railway Company v. International Association of Machinists & Aerospace Workers, 463 F.2d 872, 881 (D.C. Cir. 1972) (the court found that it could not assume that any future dispute over an "incidental work rule" would be merely a recurrence of a past dispute, noting "the possibility that actual experience under the incidental work rule would modify attitudes on both sides and mute both fears and hopes.").
Rendering a decision on the merits of these proposals based on speculation that they might be submitted in future negotiations would constitute an advisory opinion. Pursuant to section 2429.10 of its regulations, the Authority does not issue advisory opinions. However, although we do not deem it appropriate to issue a decision at this time, we emphasize that the Union is free to file another petition for review if, in the future, it submits either the same or different proposals concerning the SPWC and the Agency declares those proposals nonnegotiable.
Based on the foregoing, the Union's petition for review is dismissed.2/
For the Authority
Alicia N. Columna
Director, Case Control Office
(If blank, the decision does not have footnotes.)
1/ The circumstances here are distinguishable from those present in FLRA v. Office of Personnel Management, 778 F.2d 844 (D.C. Cir. 1985) (FLRA v. OPM). In FLRA v. OPM, the union filed a negotiability appeal concerning eight proposals that the agency had declared nonnegotiable during negotiation of a collective bargaining agreement. In view of the agency's declaration, the proposals had been omitted from consideration by the FSIP, which imposed an agreement on the parties. During the pendency of the negotiability appeal that agreement expired. Upon issuance of the decision in the negotiability appeal the agency took the position that the proposals found negotiable were moot. In FLRA v. OPM the union had persistently demanded bargaining of the proposals throughout the dispute and the agency had "an undeniable obligation to bargain." 778 F.2d at 849. Here, there is no outstanding demand to bargain over the proposals. That is, in view of the General Counsel's dismissal of the unfair labor practice charge and the termination of negotiations over the expansion of the SPWC, there is neither a bargaining demand nor current collective bargaining that encompasses these proposals.
2/ The decisions cited by the Union do not compel a different
result. In DODDS, 39 FLRA at 178-179, the record did not allow a
definitive determination of whether Proposal 2 was moot.
Therefore, the Authority ruled on the negotiability of the
proposal. Here, there is no dispute that the negotiations over
the expansion of the SPWC have terminated. In Aberdeen, 33 FLRA
at 519, the Authority actually dismissed Proposal 12 as moot
because the union had not explained how the proposal was
independent of the agency's field testing program, which was no
longer in effect.