American Federation of Government Employees, AFL-CIO, Local 2879 (Union) and Social Security Administration, San Diego, California (Activity)  

 2 FLRA No.93
 
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 2879
 (UNION)
 
    AND
 
 SOCIAL SECURITY ADMINISTRATION
 SAN DIEGO, CALIFORNIA
 (ACTIVITY)
 
                                            Case No. 0-NG-208
 
                     DECISION ON NEGOTIABILITY APPEAL
 
    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. 7171 ET
 SEQ.).
 
    THE RECORD BEFORE THE AUTHORITY SHOWS THAT DURING NEGOTIATIONS FOR A
 SUPPLEMENTAL AGREEMENT BETWEEN THE PARTIES THE UNION REQUESTED
 NEGOTIATIONS ON THE FOLLOWING MATTERS:
 
    (1) FOR ANY PROMOTION WITHIN THE SELECTING AUTHORITY OF THE DISTRICT
 MANAGER, ANY BEST
 
    QUALIFIED LIST SHALL CONTAIN THE NAMES OF NO MORE THAN THREE
 CANDIDATES.
 
    (2) A FLEXITIME PLAN THAT WILL BE SUBMITTED FOR FINAL APPROVAL WILL
 BE NEGOTIATED FOR EACH
 
    INSTALLATION WITHIN THE DISTRICT.  ANY PLAN THAT IS SENT BACK FOR
 CHANGES WILL HAVE THE
 
    CHANGES RENEGOTIATED.  FLEXIBLE BANDS WILL BE FROM 7:00 A.M. TO 9:00
 A.M., 11:00 A.M. TO 1:00
 
    P.M., AND 3:30 P.M. TO 5:30 P.M.  CORE TIMES WILL BE FROM 9:00 A.M.
 TO 11:00 A.M. AND 1:00
 
    P.M. TO 3:30 P.M.  THE EMPLOYEES IN ANY INSTALLATION WITHIN THE
 DISTRICT MAY OPT FOR
 
    "COMPRESSED WORK SCHEDULING" IN LIEU OF, OR IN ADDITION TO,
 FLEXITIME.  "COMPRESSED WORK
 
    SCHEDULING" WILL PROVIDE THAT EMPLOYEES MAY WORK A TOTAL OF 80 HOURS
 IN A TWO-WEEK PAY PERIOD
 
    IN OTHER THAN THE NORMAL 8 HOUR WORKDAY.
 
    (3) ANY CHANGES PROPOSED BY MANAGEMENT WILL BE SUBJECT TO THE
 NEGOTIATION PROCESS AT THE
 
    DISTRICT LEVEL, UPON REQUEST OF THE UNION.
 
    THE ACTIVITY RESPONDED IN WRITING TO THE UNION'S REQUEST TO NEGOTIATE
 ON THESE MATTERS, STATING, GENERALLY, THAT IT DID NOT CONSIDER THE
 ABOVE-MENTIONED MATTERS NEGOTIABLE.  THEREAFTER, ON BEHALF OF THE UNION,
 THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFGE) FILED A PETITION
 FOR REVIEW WITH THE AUTHORITY.
 
    THE ACTIVITY FILED A STATEMENT WITH THE AUTHORITY ASSERTING, IN
 SUBSTANCE, THAT BECAUSE OF A UNIT CONSOLIDATION AT THE NATIONAL LEVEL
 INCLUDING THE UNION HEREIN AND OTHER LOCALS OF THE AFGE WITHIN THE
 SOCIAL SECURITY ADMINISTRATION IN NOVEMBER 1979, THERE IS NO LONGER A
 DUTY TO BARGAIN WITH AFGE LOCAL 2879, WHICH IS PART OF THE COUNCIL OF
 DISTRICT OFFICE LOCALS FOR SAN FRANCISCO.  IN THIS CONNECTION, THE
 ACTIVITY ARGUES THAT FOLLOWING THE NOVEMBER 1979 UNIT CONSOLIDATION, IT
 IS NOT OBLIGATED TO NEGOTIATE LOCAL SUPPLEMENTAL AGREEMENTS BELOW THE
 NATIONAL LEVEL OF RECOGNITION, ABSENT AN AGREEMENT BETWEEN THE PARTIES
 TO DO SO.  IN ADDITION, THE ACTIVITY NOTES THAT THE UNION'S SECOND
 PROPOSAL CONCERNING FLEXITIME, AND ITS THIRD PROPOSAL TO NEGOTIATE
 CHANGES AT THE DISTRICT LEVEL, ARE SUBJECT TO NATIONAL NEGOTIATIONS AND
 A CONTROLLING SAN FRANCISCO MASTER AGREEMENT, RESPECTIVELY.
 
    IN ESSENCE, AFGE CONTENDS THAT THE ACTIVITY VIOLATED ITS BARGAINING
 OBLIGATION BY REFUSING TO NEGOTIATE ON THE PROPOSALS HEREIN.  IN THIS
 REGARD, AFGE ASSERTS THAT AFGE LOCAL 2T879 BEGAN NEGOTIATIONS PRIOR TO
 THE NOVEMBER 1979 UNIT CONSOLIDATION AS THE AUTHORIZED AGENT OF THE
 COUNCIL OF DISTRICT OFFICE LOCALS AND CONTINUED TO DO SO AFTER THE UNIT
 CONSOLIDATION.  IT ALLEGES THAT THE ACTIVITY HAS ENGAGED IN BAD FAITH
 BARGAINING WITH AFGE LOCAL 2879 BY REFUSING TO BARGAIN ON THE MATTERS
 HEREIN UNTIL THE TIME THE UNIT CONSOLIDATION BECAME EFFECTIVE AND THEN,
 "AS A STRATAGEM TO ESCAPE BARGAINING," ALLEGING THAT SUCH MATTERS WERE
 OUTSIDE ITS DUTY TO BARGAIN BECAUSE THE LEVEL OF RECOGNITION HAD CHANGED
 WITH THE AFGE LOCALS.  IN SUM, THE AFGE CONTENDS THAT THE ONLY ISSUE IN
 THE SUBJECT CASE IS WHETHER THE ACTIVITY HAS COMMITTED AN UNFAIR LABOR
 PRACTICE AND/OR VIOLATED THE PARTIES' AGREEMENT, AND, THAT THE UNION'S
 REDRESS LIES IN ANOTHER FORUM.  WE AGREE.
 
    THE UNION'S CONTENTIONS FOCUS ON WHETHER THE ACTIVITY HAS ENGAGED IN
 BAD FAITH BARGAINING AND THE ACTIVITY'S DEFENSE IS THAT ITS OBLIGATION
 TO BARGAIN WITH AFGE LOCAL 2879 HAS CEASED ON SUCH MATTERS SUBSEQUENT TO
 THE AFOREMENTIONED UNIT CONSOLIDATION.  THUS, THE ESSENCE OF THE
 PARTIES' CONTENTIONS RELATE TO THE BARGAINING OBLIGATION OF THE PARTIES
 UNDER THE CIRCUMSTANCES HEREIN AND NOT TO WHETHER THE PROPOSALS
 THEMSELVES VIOLATE LAW OR REGULATION.  THEREFORE, THE PROPER FORUM IN
 WHICH TO RAISE THESE ISSUES IS NOT A NEGOTIABILITY APPEAL, BUT WOULD BE
 AN UNFAIR LABOR PRACTICE PROCEEDING PURSUANT TO SECTION 7118 OF THE
 STATUTE.  SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1931
 AND DEPARTMENT OF THE NAVY, NAVAL WEAPONS STATION, CONCORD, CALIFORNIA,
 CASE NO. O-NG-55, 2 FLRA NO. 19 (DEC. 5, 1979), REPORT NO. . . ., AND
 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1363 AND HEADQUARTERS,
 U.S. ARMY GARRISON, YONGSAN, KOREA, CASE NO.  O-NG-94, 2 FLRA NO. 50
 (DEC. 31, 1979), REPORT NO. . . . .
 
    ADDITIONALLY, TO THE EXTENT THAT THE INSTANT CASE INVOLVES DISPUTES
 OVER WHETHER THE UNION'S PROPOSAL CONCERNING FLEXITIME IS SUBJECT TO
 NATIONAL NEGOTIATION ONLY, AND/OR WHETHER ITS PROPOSAL TO NEGOTIATE
 CHANGES AT THE DISTRICT LEVEL IS CONTROLLED BY A SAN FRANCISCO MASTER
 AGREEMENT, THE PROPER FORUM IN WHICH TO RESOLVE THESE DISPUTES WOULD BE
 PURSUANT TO WHATEVER PROCEDURES THE PARTIES THEMSELVES HAVE ADOPTED FOR
 SUCH PURPOSES THROUGH SUCH AGREEMENTS.  SEE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1931 AND DEPARTMENT OF THE NAVY,
 NAVAL WEAPONS STATION, CONCORD, CALIFORNIA, CASE NO. O-NG-55, 2 FLRA NO.
 19 (DEC. 5, 1979), REPORT NO. . . ., AND AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, BUREAU OF PRISONS, FEDERAL CORRECTIONAL
 INSTITUTION, DANBURY, CONNECTICUT, CASE NO. O-NG-43, 2 FLRA NO. 56 (JAN
 9, 1980), REPORT NO. . . . .
 
    BASED ON THE FOREGOING, THE UNION'S APPEAL DOES NOT PRESENT ISSUES
 THAT THE AUTHORITY CAN APPROPRIATELY RESOLVE AT THIS TIME UNDER SECTION
 7117 OF THE STATUTE AND PART 2424 OF ITS RULES AND REGULATIONS.
 ACCORDINGLY, THE APPEAL IS DISMISSED.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 29, 1980.
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY