American Federation of Government Employees, AFL-CIO, Local 1931, and Department of the Navy, Naval Weapons Station, Concord, California

 2 FLRA No. 19
 
 MR. WILFORD SCOTT
 UNION PRESIDENT
 AFGE LOCAL 1931
 P.O. BOX 5548
 CONCORD, CALIFORNIA 94524
 
                        RE:  AMERICAN FEDERATION OF GOVERNMENT 
                             EMPLOYEES, AFL-CIO, LOCAL 1931, 
                             AND DEPARTMENT OF THE NAVY, NAVAL
                             WEAPONS STATION, CONCORD, 
                             CALIFORNIA, Case No. 0-NG-55
 
 DEAR MR. SCOTT:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED THE SUBMISSIONS OF THE PARTIES
 FILED IN THE ABOVE-ENTITLED CASE.  FOR THE REASONS INDICATED BELOW, THE
 AUTHORITY HAS DETERMINED YOUR APPEAL MUST BE DENIED.
 
    THE BASIC FACTS, AS SET FORTH IN THE RECORD, ARE AS FOLLOWS:  THE
 UNION AND THE ACTIVITY ARE PARTIES TO AN AGREEMENT WHICH BECAME
 EFFECTIVE ON MARCH 30, 1979, UPON TERMINATION OF A PRIOR NEGOTIATED
 AGREEMENT.  THE PARTIES' PRIOR AGREEMENT, AND THEIR AGREEMENT OF MARCH
 30, 1979, CONTAIN CERTAIN PROVISIONS WITH RESPECT TO DISTRIBUTION
 CHANNELS FOR UNION NOTICES.  IN JANUARY 1979, A UNION OFFICIAL
 DISTRIBUTED A LETTER TO ACTIVITY EMPLOYEES.  THE LETTER DEALT WITH A
 POSSIBLE MERGER OF THE FEDERAL RETIREMENT SYSTEM WITH THE SOCIAL
 SECURITY SYSTEM AND ENCOURAGED EMPLOYEES TO WRITE THEIR CONGRESSIONAL
 REPRESENTATIVES AGAINST SUCH MERGER.  THE RECORD IS UNCLEAR, AND THE
 PARTIES IN DISPUTE, AS TO WHETHER THE AFOREMENTIONED LETTER WAS
 DISTRIBUTED TO EMPLOYEES ON LUNCH HOUR OR REGULAR WORKING TIME.
 
    BY LETTER DATED FEBRUARY 13, 1979, THE ACTIVITY NOTIFIED THE LOCAL
 PRESIDENT OF THE UNION THAT, AMONGST OTHER THINGS, IT WAS STATION POLICY
 THAT NO EMPLOYEE IS AUTHORIZED TO CIRCULATE NON-WORK RELATED MATERIALS
 ON ACTIVITY PROPERTY DURING WORKING HOURS.  IN ITS RESPONSE, DATED
 FEBRUARY 22, 1979, THE UNION CONTENDED, IN PERTINENT PART, THAT IT WAS
 NOT AWARE THAT THERE WAS A POLICY REGARDING THE DISTRIBUTION OF ANY TYPE
 OF LITERATURE ON STATION PROPERTY AND THAT THE UNION HAD BEEN
 DISSEMINATING VARIOUS TYPES OF LITERATURE DURING THE PAST 10 YEARS.  THE
 UNION REQUESTED TO NEGOTIATE ON SUCH POLICY.  THE ACTIVITY REPLIED, ON
 MARCH 14, 1979, NOTING THAT ITS OWN LABOR-MANAGEMENT RELATIONS
 SPECIALISTS DID NOT RECALL ANY PAST PRACTICE WITH RESPECT TO THE
 CIRCULATION OF LITERATURE TO EMPLOYEES DURING REGULAR WORKING TIME.  ON
 MARCH 20, 1979, THE UNION REQUESTED A FINAL DECISION BY THE ACTIVITY IN
 CONNECTION WITH THE UNION'S RIGHT TO BARGAIN OVER IMPACT AND
 IMPLEMENTATION ON THE DISTRIBUTION OF LITERATURE ON STATION PROPERTY.
 IT ALSO CONTENDED THAT THE ACTIVITY WAS ATTEMPTING TO ESTABLISH NEW
 WORKING CONDITIONS.  THEREAFTER, THE UNION REQUESTED THAT THE AUTHORITY
 MAKE A DETERMINATION AS TO THE NEGOTIABILITY OF THE "ISSUES BETWEEN THE
 PARTIES."
 
    IN ITS STATEMENT OF POSITION FILED WITH THE AUTHORITY, THE ACTIVITY
 NOTES THAT THE PARTIES' MOST RECENT AGREEMENT, WHICH CONTAINS PROVISIONS
 FOR MODIFICATION, CAN ONLY BE REOPENED BY MUTUAL CONSENT, AND THAT THE
 ACTIVITY CLEARLY REFUSES TO GIVE SUCH AGREEMENT.
 
    THUS, BASED ON THE RECORD IN THIS CASE, IT IS CLEAR THAT THE ESSENCE
 OF THE CONTENTIONS AND ARGUMENTS OF THE PARTIES PRINCIPALLY RELATES TO
 WHETHER, UNDER THE PARTICULAR CIRCUMSTANCES HERE PRESENTED, A PAST
 PRACTICE EXISTED WITH RESPECT TO THE DISTRIBUTION OF UNION LITERATURE;
 WHETHER THE ACTIVITY ATTEMPTED UNILATERALLY TO ESTABLISH A WORKING
 CONDITION;  AND WHETHER, OR TO WHAT EXTENT, THE PARTIES' AGREEMENT
 ADDRESSED SUCH MATTERS OR COULD BE REOPENED TO DO SO.  IT DOES NOT,
 HOWEVER, FOCUS ON ISSUES APPROPRIATE FOR RESOLUTION UNDER THE PROCEDURES
 SET FORTH IN SECTION 7117 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE AND PART 2424 OF THE AUTHORITY'S RULES AND REGULATIONS
 CONCERNING WHETHER PARTICULAR UNION PROPOSALS ARE THEMSELVES
 NONNEGOTIABLE, I.E., INCONSISTENT WITH LAW, RULE OR REGULATION.  /1/
 RATHER, THE SUBSTANCE OF THE UNION'S ALLEGATIONS CONCERNS BOTH UNFAIR
 LABOR PRACTICE ISSUES APPROPRIATE FOR RESOLUTION UNDER PROCEDURES SET
 FORTH UNDER SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (92 STAT. 1207-8), AND A QUESTION AS TO THE
 INTERPRETATION OF THE PARTIES' AGREEMENT APPROPRIATE FOR RESOLUTION
 UNDER THE PROCEDURES ESTABLISHED BY THAT AGREEMENT.
 
    THAT IS, TO THE EXTENT THAT THE INSTANT CASE AROSE OUT OF AN ALLEGED
 UNILATERAL CHANGE COUPLED WITH A REFUSAL TO BARGAIN AND A DEFENSE,
 ESSENTIALLY, THAT NO CHANGE HAS OCCURRED, 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.  IN
 THIS REGARD, RESOLUTION OF THE INSTANT DISPUTE IS DEPENDENT UPON THE
 RESOLUTION OF FACTUAL ISSUES RELATED TO THE PARTIES' CONDUCT.  SUCH
 FACTUAL DETERMINATIONS CAN BEST BE ACCOMPLISHED THROUGH USE OF THE
 INVESTIGATORY AND FORMAL HEARING PROCEDURES SET FORTH IN PART 2423 OF
 THE AUTHORITY'S RULES AND REGULATIONS WHICH GOVERN UNFAIR LABOR PRACTICE
 PROCEEDINGS (44 FED.REG. 44760 ET SEQ.(1979)).
 
    FURTHERMORE, TO THE EXTENT THAT THE INSTANT CASE ARISES OUT OF A
 DISPUTE OVER THE MEANING OF PROVISIONS CONTAINED IN THE PARTIES'
 AGREEMENT, THE PROPER FORUM IN WHICH TO RESOLVE SUCH QUESTIONS IS NOT
 THE NEGOTIABILITY APPEAL BUT, INSTEAD, WOULD BE PURSUANT TO WHATEVER
 PROCEDURES THE PARTIES THEMSELVES HAVE ADOPTED FOR SUCH PURPOSE THROUGH
 SUCH AGREEMENT.
 
    BASED ON THE FOREGOING, YOU NEGOTIABILITY APPEAL DOES NOT PRESENT
 ISSUES THAT THE AUTHORITY CAN APPROPRIATELY RESOLVE UNDER SECTION 7117
 OF THE STATUTE AND PART 2424 OF ITS RULES AND REGULATIONS.  ACCORDINGLY,
 YOUR APPEAL IS DISMISSED.
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
    /1/ IN THIS REGARD, SEC. 2424.1 OF THE AUTHORITY'S RULES AND
 REGULATIONS (44 FED.REG. 44765)(1979), WHICH SETS FORTH CONDITIONS
 GOVERNING REVIEW OF NEGOTIABILITY ISSUES, STATES IN PERTINENT PART AS
 FOLLOWS:
 
    THE AUTHORITY WILL CONSIDER A NEGOTIABILITY ISSUE UNDER THE
 CONDITIONS PRESCRIBED BY 5
 
    U.S.C. 7117(B) AND (C), NAMELY:  IF AN AGENCY INVOLVED IN COLLECTIVE
 BARGAINING WITH AN
 
    EXCLUSIVE REPRESENTATIVE ALLEGES THAT THE DUTY TO BARGAIN IN GOOD
 FAITH DOES NOT EXTEND TO ANY
 
    MATTER PROPOSED TO BE BARGAINED BECAUSE, AS PROPOSED, THE MATTER IS
 INCONSISTENT WITH LAW,
 
    RULE OR REGULATION, THE EXCLUSIVE REPRESENTATIVE MAY APPEAL THE
 ALLEGATION TO THE AUTHORITY
 
    . . .