National Treasury Employees Union, Chapter 208 (Union) and Nuclear Regulatory Commission, Washington, DC (Agency)  

 4 FLRA No. 31
 
 NATIONAL TREASURY EMPLOYEES
 UNION, CHAPTER 208
 Union
 
 and
 
 NUCLEAR REGULATORY COMMISSION,
 WASHINGTON, D.C.
 Agency
 
                                            Case No. O-MC-5
 
                         ORDER DISMISSING PETITION
 
    IN A PETITION FILED WITH THE AUTHORITY, CHAPTER 208, NATIONAL
 TREASURY EMPLOYEES UNION (THE UNION) SEEKS REVIEW OF AN ISSUE THAT AROSE
 IN CONNECTION WITH THE PROCESSING OF A GRIEVANCE UNDER A NEGOTIATED
 AGREEMENT BETWEEN THE UNION AND THE NUCLEAR REGULATORY COMMISSION (THE
 AGENCY).  BASED UPON THE UNION'S SUBMISSION, IT APPEARS THAT THE AGENCY
 DENIED A GRIEVANCE (RELATED TO A LIFE INSURANCE COVERAGE AND PREMIUM
 PAYMENT DISPUTE) AT THE FIRST STEP OF THE PARTIES' NEGOTIATED GRIEVANCE
 PROCEDURE ON THE GROUND THAT THE MATTER WAS NONGRIEVABLE, BECAUSE IT WAS
 SPECIFICALLY EXCLUDED FROM GRIEVANCE PROCEDURE COVERAGE BY SECTION
 7121(C)(2) OF THE STATUTE.  /1/ ON APPEAL AT THE SECOND STEP OF THE
 GRIEVANCE PROCEDURE, IT FURTHER APPEARS THAT THE AGENCY ADVISED THE
 UNION THAT SINCE THE DETERMINATION THAT THE MATTER WAS NONGRIEVABLE WAS
 BASED ON THE AGENCY'S VIEW THAT IT WAS NONNEGOTIABLE, THE UNION'S
 RECOURSE, IN ACCORDANCE WITH SECTION G(1) OF THE PARTIES' AGREEMENT, /2/
 WAS NOT TO THE SECOND LEVEL OFFICIAL, BUT RATHER, TO THE FEDERAL LABOR
 RELATIONS AUTHORITY.  THE UNION THEREUPON FILED THE INSTANT PETITION
 WITH THE AUTHORITY.
 
    SECTION 2424.1 OF THE AUTHORITY'S RULES OF PROCEDURE (5 C.F.R.
 2424.1(1980)), GOVERNING REVIEW OF NEGOTIABILITY ISSUES, PROVIDES THAT
 THE AUTHORITY WILL CONSIDER A NEGOTIABILITY ISSUE UNDER THE CONDITIONS
 PRESCRIBED THEREIN (AS RELEVANT HERE, 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).
 
    THE CIRCUMSTANCES DESCRIBED IN THE UNION'S PETITION DO NOT GIVE RISE
 TO A NEGOTIABILITY ISSUE WHICH THE AUTHORITY MAY PROPERLY REVIEW UNDER
 SECTION 2424.1 OF ITS RULES OF PROCEDURE.  THAT IS, THE PARTIES WERE NOT
 INVOLVED IN COLLECTIVE BARGAINING WHEN THE INSTANT DISPUTE AROSE;  THE
 UNION DID NOT PROPOSE THAT A PARTICULAR MATTER BE BARGAINED;  NOR DID
 THE AGENCY ALLEGE THAT ITS DUTY TO BARGAIN DID NOT EXTEND TO SUCH
 MATTER.  RATHER, AS ALREADY INDICATED, THE DISPUTE AROSE DURING THE
 PROCESSING OF A GRIEVANCE, AND CONCERNED THE GRIEVABILITY OF THE MATTER
 INVOLVED.
 
    MOREOVER, UNDER SECTION 7121 OF THE STATUTE,
 GRIEVABILITY/ARBITRABILITY QUESTIONS WHICH ARE NOT SATISFACTORILY
 RESOLVED BY THE PARTIES UNDER NEGOTIATED GRIEVANCE PROCEDURES ARE
 SUBJECT TO BINDING ARBITRATION.  DETERMINATIONS BY AN ARBITRATOR ON SUCH
 QUESTIONS ARE, OF COURSE, SUBJECT TO AUTHORITY REVIEW UPON THE FILING OF
 EXCEPTIONS BY A PARTY TO THE PROCEEDING, PURSUANT TO SECTION 7122 OF THE
 STATUTE AND PART 2425 OF THE AUTHORITY'S REGULATIONS (5 C.F.R.PART
 2425(1980)).
 
    FURTHER, REGARDING SECTION G(1) OF THE PARTIES' AGREEMENT PROVIDING
 THAT THE UNION MAY APPEAL AGENCY DETERMINATIONS OF NONNEGOTIABILITY TO
 THE AUTHORITY, SUCH IS WITHOUT ANY CONTROLLING EFFECT.  THE JURISDICTION
 OF THE AUTHORITY TO REVIEW NEGOTIABILITY ISSUES IS ESTABLISHED BY THE
 STATUTE.  THE EXERCISE OF THAT JURISDICTION, AS PROVIDED IN PART 2424 OF
 THE AUTHORITY'S RULES OF PROCEDURE, CANNOT IN ANY WAY BE EXPANDED BY AN
 AGREEMENT BETWEEN THE PARTIES TO A COLLECTIVE BARGAINING AGREEMENT.
 THEREFORE, THE CONTRACT PROVISION INVOLVED HERE IS WITHOUT FORCE OR
 EFFECT AS TO THE AUTHORITY.
 
    ACCORDINGLY, SINCE THE UNION'S PETITION FAILS TO MEET THE
 REQUIREMENTS FOR REVIEW UNDER SECTION 2424.1 OF THE AUTHORITY'S RULES OF
 PROCEDURE,
 
    IT IS HEREBY ORDERED THAT THE UNION'S PETITION BE, AND IT HEREBY IS,
 DISMISSED.
 
    FOR THE AUTHORITY.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 12, 1980
 
                 SAMUEL A. CHAITOVITZ, EXECUTIVE DIRECTOR
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 5 U.S.C. 7121(C)(2)(SUPP. II 1978).  SECTION 7121(C) OF THE
 STATUTE PROVIDES, IN PERTINENT PART:
 
    THE PRECEDING SUBSECTIONS OF THIS SECTION SHALL NOT APPLY WITH
 RESPECT TO ANY GRIEVANCE
 
    CONCERNING . . . (2) RETIREMENT, LIFE INSURANCE, OR HEALTH INSURANCE
 . . .
 
    /2/ SECTION G(1) OF THE PARTIES' AGREEMENT PROVIDES, IN PART:
 
    MANAGEMENT MAY ASSERT THAT A MATTER IS NON-GRIEVABLE OR
 NON-ARBITRABLE BECAUSE IT IS
 
    NON-NEGOTIABLE AT ANY STEP OF THE GRIEVANCE PROCEDURE.  THE UNION MAY
 APPEAL THE DETERMINATION
 
    OF NON-NEGOTIABILITY TO THE FEDERAL LABOR RELATIONS AUTHORITY .  . .