American Federation of Government Employees, AFL-CIO, Local 2578 and General Services Administration, National Archives and Records Service 

 3 FLRA No. 16
 
                              APRIL 28, 1980
 Mr. Phillip R. Kete
 Special Representative, AFGE 2578
 Gaffney, Anspach, Schember, Klimaski
 and Marks
 1712 N Street, N.W.
 Washington, D.C.  20036
 
                  Re:  American Federation of Government
                         Employees, Afl-cio, Local 2578 and
                         General Services Administration,
                         National Archives and Records Service,
                         Case No. 0-NG-163
 
 DEAR MR. KETE:
 
    THIS REFERS TO YOUR PETITION FOR REVIEW OF A NEGOTIABILITY ISSUE IN
 THE ABOVE-ENTITLED CASE, DATED SEPTEMBER 12, 1979, ON BEHALF OF THE
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2578.
 
    FOR THE REASONS INDICATED BELOW, YOUR PETITION DOES NOT MEET THE
 CONDITIONS FOR REVIEW ESTABLISHED IN THE AUTHORITY'S REGULATIONS, AND,
 THEREFORE, THE APPEAL MUST BE DISMISSED.
 
    THE UNION'S ORIGINAL PROPOSAL, REJECTED BY THE AGENCY AS NOT WITHIN
 ITS DUTY TO BARGAIN IN GOOD FAITH, WAS AS FOLLOWS:
 
    EXCEPT AS OTHERWISE REQUIRED BY LAW OR EXECUTIVE ORDER, OR AS MAY BE
 REQUIRED BY THE
 
    TECHNOLOGY OF CERTAIN ARCHIVAL WORK, THE TEMPERATURES IN ALL WORK
 AREAS WILL BE KEPT WITHIN
 
    THE RANGE OF 68 DEGREES AND 75 DEGREES AND THE RELATIVE HUMIDITY WILL
 BE KEPT IN THE RANGE OF
 
    40 PERCENT AND 50 PERCENT.
 
    THE AGENCY'S ALLEGATION OF NONNEGOTIABILITY, BASED PRINCIPALLY ON ITS
 VIEW THAT THE ABOVE PROPOSAL IS CONTRARY TO GOVERNMENT-WIDE REGULATIONS,
 I.E., STANDBY CONSERVATION PLAN NO. 2, EMERGENCY BUILDING TEMPERATURE
 RESTRICTIONS (44 FED.REG. 39354 ET SEG.  (1979)), WAS APPEALED TO THE
 AUTHORITY.  SUBSEQUENTLY, IN RESPONSE TO THE AGENCY'S STATEMENT OF
 POSITION, YOU SUBMITTED A BRIEF WHICH INCLUDED A REVISION OF THE
 ORIGINAL UNION PROPOSAL.  THE REVISED PROPOSAL INCLUDED THE PHRASE "OR
 BINDING GOVERNMENT-WIDE REGULATION" AMONG THOSE AUTHORITIES WHICH WOULD
 PERMIT MANAGEMENT TO DEVIATE FROM THE TEMPERATURE AND HUMIDITY RANGES
 PRESCRIBED IN THE PROPOSAL.  /1/
 
    SECTION 2424.1 OF THE AUTHORITY'S RULES AND REGULATIONS (45 FED.REG.
 3511, 3512), PERTAINING TO PETITIONS FOR REVIEW OF NEGOTIABILITY ISSUES,
 PROVIDES, IN PART:
 
    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
 
    . . .
 
    IN THE INSTANT CASE, THE RECORD BEFORE THE AUTHORITY CLEARLY
 INDICATES THAT THE REVISED PROPOSAL CONCERNING WHICH YOU SEEK A
 NEGOTIABILITY DECISION FROM THE AUTHORITY WAS NOT THE SUBJECT OF AN
 ALLEGATION OF NONNEGOTIABILITY.  IN FACT, YOU STATE THAT "THE OMISSION
 OF REFERENCE TO BINDING GOVERNMENT-WIDE REGULATIONS IN THE INITIAL
 PROPOSAL WAS AN OVERSIGHT." HENCE, THE APPEAL DOES NOT MEET THE
 CONDITIONS FOR REVIEW OF A NEGOTIABILITY ISSUE AS SET FORTH IN SECTION
 2424.1 OF THE RULES AND REGULATIONS OF THE AUTHORITY IN THAT THE AGENCY
 HAS NOT ALLEGED THAT THE REVISED PROPOSAL WHICH YOU NOW ASK THE
 AUTHORITY TO CONSIDER IS OUTSIDE THE DUTY TO BARGAIN.  ACCORDINGLY, THE
 INSTANT APPEAL IS PREMATURE AND THEREFORE MUST BE DISMISSED WITHOUT A
 DETERMINATION BY THE AUTHORITY AS TO THE NEGOTIABILITY OF THE UNION'S
 REVISED PROPOSAL.
 
    FOR THE AUTHORITY,
 
                                SINCERELY,
 
                           SAMUEL A. CHAITOVITZ
 
                            EXECUTIVE DIRECTOR
 
    CC:  MR. W. M. PAZ
 
    GSA
 
    /1/ THE REVISED UNION PROPOSAL PROVIDES AS FOLLOWS:
 
    EXCEPT AS OTHERWISE REQUIRED BY LAW, EXECUTIVE ORDER, OR BINDING
 GOVERNMENT-WIDE
 
    REGULATION, OR AS MAY BE REQUIRED BY THE TECHNOLOGY OF CERTAIN
 ARCHIVAL WORK, THE TEMPERATURES
 
    IN ALL WORK AREAS WILL BE KEPT WITHIN THE RANGE OF 68 DEGREES AND 75
 DEGREES AND THE RELATIVE
 
    HUMIDITY WILL BE KEPT IN THE RANGE OF 40 PERCENT AND 50 PERCENT.