45:0938(93)NG - - Int. Fed. of Professional and Technical Engineers, Local 89 and Interior, Bureau of Reclamation Pacific Northwest Region, Grand Coulee Project Office, Grand Coulee, WA - - 1992 FLRAdec NG - - v45 p938

[ v45 p938 ]
The decision of the Authority follows:

45 FLRA NO. 93
















August 18, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of one proposal.

The proposal concerns the employment of relatives who report to the same supervisor. We find, for the following reasons, that there are no issues concerning whether the disputed proposal is inconsistent with applicable law, rule or regulation that are appropriate for resolution in a negotiability proceeding under section 7117 of the Statute. Consequently, we will dismiss the petition for review without prejudice to the Union's right to file a negotiability appeal at a later date, should it choose to do so, provided that the conditions for review of such an appeal are met.

II. Background

The parties began negotiations for a collective bargaining agreement in 1990 and completed negotiations in January 1992. On December 18, 1991, the parties began discussing the issue of the employment of relatives, which the Union had raised to the Agency in a letter of December 11, 1991. On January 2, 1992, the Union submitted its proposal on that issue to the Agency. The parties met and discussed the proposal on January 3, February 5, and February 13, 1992. Following the February 13, 1992 bargaining session, the Agency made an oral allegation of nonnegotiability regarding the Union's proposal. On February 14, 1992, the Union requested a written allegation of nonnegotiability from the Agency regarding the proposal. The Agency did not reply. On February 25, 1992, the Union submitted the petition for review in this case.

The Agency head approved the parties' collective bargaining agreement on February 12, 1992. On February 28, 1992, management transmitted the Agency head's approval of the agreement to the Union. The Union states that it received the notification of the approval on March 2, 1992. See Union's Response, Exhibit J.

III. Proposal

1.0 Employment of Relatives

1.1 Relatives, as defined in Reclamation Instruction FPM R310.1.1, shall not be employed within the same organizational unit when each would be reporting to the same supervisor.

1.2 Bargaining unit employees who are related and who are currently reporting to the same supervisor shall continue to do so until such time as one or the other or both of them are moved to a new duty assignment or the Regional Director withdraws the October 4, 1989 exception, whichever event comes first.

1.3 All other aspects of the Regional Director's October 4, 1989 exception to Reclamation Instruction FPM

R10.1.3 shall remain intact and in effect until amended, removed or replaced by the Regional Director or they are negotiated otherwise between the employer and the Union.

IV. Positions of the Parties

A. Agency

The Agency contends that the proposal constitutes a mid-term Union-initiated bargaining proposal. According to the Agency, the Union was given the option of including the proposal in the parties' initial agreement before the agreement was sent for approval by the Agency head. The Agency asserts that the Union elected to withdraw the proposal rather than include it in the agreement.

The Agency argues that the Preamble to the parties' agreement precludes negotiation of the proposal. According to the Agency, the Preamble to the parties' agreement states that, during the life of the agreement, the parties are subject to "published Departmental and Bureau policies and regulations in existence at the time this Agreement was approved . . . ." Agency's Statement at 2. The Agency contends that the proposal concerns a policy that is an appropriate Bureau policy and that the policy was in effect when the agreement was approved. The Agency claims that the proposal is contrary to the parties' agreement because it would change the existing policy.

The Agency also argues that Article 17, Section 17.2 of the parties' agreement provides for Union-initiated mid-term changes to the parties' agreement only during the annual open period. Accordingly, the Agency contends that, under the agreement, it cannot be required to bargain on the proposal until that open period. The Agency also asserts that it has no duty under the Statute to bargain on Union-initiated mid-term bargaining proposals.

B. Union

The Union asserts that, contrary to the Agency's claim, "no offer was made either during [or] after the negotiation of our initial agreement for inclusion of the matter at issue . . . in the parties' agreement." Union's Response at 2. Therefore, the Union claims that it did not elect to withdraw the matter at issue. Rather, according to the Union, "the issue was pressed by the Union at every opportunity during the parties['] continuing negotiations." Id.

The Union agrees that the Preamble to the parties' agreement bars the negotiation of Bureau policies in existence at the time their agreement was approved. However, the Union contends that there was no "'approved'" agreement in place to bar the parties' negotiations on the issue in dispute. Id. (emphasis in original).

V. Analysis and Conclusions

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 National Federation of Federal Employees, Forest Service Council and U.S. Department of Agriculture, Forest Service, Region 6, Portland, Oregon, 45 FLRA 242 (1992) (Forest Service, Region 6); National Federation of Federal Employees, Local 1900 and Department of Housing and Urban Development, 33 FLRA 192, 194-95 (1988) (Housing and Urban Development).

The Agency does not allege that the proposal is inconsistent with law, rule or regulation. Thus, because there is no issue before us as to whether the disputed proposal conflicts with law, rule or regulation, 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, Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783 n.1 (1991); Housing and Urban Development; American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 26 FLRA 768, 769-70 (1987) (Department of Labor).

The Agency's only contentions are that it is not obligated to bargain because the proposal conflicts with the terms of the parties' collective bargaining agreement and because it has no duty to bargain over Union-initiated mid-term changes to the agreement in the circumstances of this case. To the extent that there are issues regarding the parties' agreement or the duty to bargain in the specific circumstances of this case, those issues should be resolved in other appropriate proceedings, for example, under applicable contractual procedures or the unfair labor practice procedures of the Statute. See Forest Service, Region 6; American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury Connecticut, 29 FLRA 990, 993 (1987), reversed as to other matters sub nom. U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional