American Federation of Government Employees, Local 3403, AFL-CIO (Union) and National Science Foundation, Washington, DC (Agency)  

 4 FLRA No. 77
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 3403
 Union
 
 and
 
 NATIONAL SCIENCE FOUNDATION,
 WASHINGTON, D.C.
 Agency
 
                                            Case No. 0-NG-243
 
                DECISION AND ORDER 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. 7101 ET
 SEQ.).
 
    ON NOVEMBER 13, 1979, THE AGENCY FORWARDED A PROPOSED REVISION TO ITS
 REDUCTION-IN-FORCE REGULATION, NATIONAL SCIENCE FOUNDATION (NSF)
 CIRCULAR NO. 33, TO THE UNION FOR REVIEW.  ACCORDING TO THE AGENCY, THE
 PROPOSED REVISION WAS DESIGNED ONLY TO BRING NSF CIRCULAR NO. 33 IN
 CONFORMANCE WITH THE REQUIREMENTS OF HIGHER AUTHORITY, SUCH AS THE CIVIL
 SERVICE REFORM ACT OF 1978 AND THE REGULATIONS OF THE OFFICE OF
 PERSONNEL MANAGEMENT.  IN RESPONSE, THE UNION SUBMITTED A PROPOSAL,
 CONTAINING A SERIES OF ITS OWN DESIRED REVISIONS TO NSF CIRCULAR NO.
 33, WHICH IT SOUGHT TO NEGOTIATE.  THE AGENCY TOOK THE POSITION THAT THE
 DUTY TO BARGAIN DID NOT EXTEND TO THE MATTERS INVOLVED IN THE UNION'S
 PROPOSAL, STATING THAT "(T)HE PROPOSAL DOES NOT RELATE TO THE MATTERS
 MANDATED BY HIGHER AUTHORITY WHICH ARE THE BASIS FOR THE PROPOSED
 REVISION, BUT RATHER IT REPRESENTS AN ATTEMPT TO INITIATE MIDCONTRACT
 CHANGES IN ESTABLISHED PERSONNEL POLICIES, PRACTICES AND MATTERS
 AFFECTING WORKING CONDITIONS."
 
    IN ITS APPEAL, THE UNION CONTENDS THE PROPOSAL CONCERNS WORKING
 CONDITIONS OF UNIT EMPLOYEES.  THE UNION ARGUES FURTHER THAT THERE IS NO
 PROVISION IN THE STATUTE "LIMITING THE RIGHT TO BARGAIN DURING THE TERM
 OF A CONTRACT," AND IN THIS CASE, "THERE IS NO CONTRACTUAL WAIVER OF THE
 RIGHT TO BARGAIN."
 
    IN ITS STATEMENT OF POSITION, THE AGENCY ARGUES THAT THE PROPOSED
 REVISION TO NSF CIRCULAR NO. 33 IMPLEMENTS STATUTORY PROVISIONS AND
 REGULATORY PROVISIONS OF THE OFFICE OF PERSONNEL MANAGEMENT AND
 THEREFORE NO OBLIGATION TO BARGAIN EXISTS WITH RESPECT TO THE REVISION
 OTHER THAN MATTERS RELATING TO ITS IMPACT AND IMPLEMENTATION.  IN
 SUPPORT OF THIS ARGUMENT, THE AGENCY RELIES ON NATIONAL SCIENCE
 FOUNDATION AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3403,
 AFL-CIO, 1 FLRA NO. 116(1979).  IN THAT DECISION, WHICH INVOLVED THE
 SAME PARTIES AND THE SAME COLLECTIVE BARGAINING AGREEMENT AS IN THIS
 CASE, THE AUTHORITY DETERMINED THAT NSF CIRCULAR NO. 33 HAD BEEN
 INCORPORATED AS A TERM OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT
 AND THE AGENCY WAS OBLIGATED TO BARGAIN OVER THE IMPACT AND
 IMPLEMENTATION OF THE PROPOSED CHANGES TO CIRCULAR NO. 33.  SINCE THE
 AGENCY ASSERTS THAT THE UNION'S PROPOSAL BEARS NO RELATION TO THE
 CHANGES IN CIRCULAR NO. 33 PROPOSED BY THE AGENCY, AND SINCE THE AGENCY
 ASSERTS THERE IS NO PROVISION IN THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT THAT REQUIRES BARGAINING OVER THE PORTIONS OF CIRCULAR NO.  33
 WHICH WILL REMAIN UNALTERED, THE AGENCY MAINTAINS THERE IS NO OBLIGATION
 UNDER THE STATUTE TO BARGAIN OVER THE UNION'S PROPOSAL.
 
    THUS, IT APPEARS THAT THE PRINCIPAL DISPUTE BETWEEN THE PARTIES
 CONCERNS THE NATURE OF THE UNDERLYING OBLIGATION TO BARGAIN, NOT WHETHER
 THE PROPOSALS THEMSELVES ARE NEGOTIABLE.  QUESTIONS CONCERNING WHETHER
 THE AGENCY IS OBLIGATED TO BARGAIN AT THIS TIME ON THE MATTERS RAISED BY
 THE UNION DO NOT FOCUS ON ISSUES APPROPRIATE FOR RESOLUTION UNDER THE
 PROCEDURES SET FORTH IN SECTION 7117 OF THE STATUTE AND PART 2424 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.1 ET SEQ.), CONCERNING
 WHETHER A PARTICULAR UNION PROPOSAL IS ITSELF NONNEGOTIABLE, I.E.,
 INCONSISTENT WITH LAW, RULE OR REGULATION.  RATHER, THE SUBSTANCE OF THE
 PARTIES' CONTENTIONS CONCERNS UNFAIR LABOR PRACTICE ISSUES APPROPRIATE
 FOR RESOLUTION UNDER PROCEDURES SET FORTH UNDER SECTION 7118 OF THE
 STATUTE.  THAT IS, 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 MAY BE DEPENDENT UPON THE RESOLUTION
 OF FACTUAL ISSUES RELATED TO THE PARTIES' CONDUCT.  SUCH FACTUAL
 DETERMINATIONS CAN BEST BE ACCOMPLISHED THROUGH USE OF INVESTIGATORY AND
 FORMAL HEARING PROCEDURES SET FORTH IN PART 2423 OF THE AUTHORITY'S
 RULES AND REGULATIONS WHICH GOVERN UNFAIR LABOR PRACTICE PROCEEDINGS (5
 CFR 2423.1 ET SEQ.). SEE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 1931 AND DEPARTMENT OF THE NAVY, NAVAL WEAPONS STATION,
 CONCORD, CALIFORNIA, 2 FLRA NO. 19(1979) AND NATIONAL TREASURY EMPLOYEES
 UNION AND DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, WASHINGTON,
 D.C., 3 FLRA NO. 52(1980).
 
    BASED ON THE FOREGOING, THIS NEGOTIABILITY 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, IT IS ORDERED THAT THE UNION'S APPEAL BE DISMISSED WITHOUT
 PREJUDICE TO THE UNOIN'S RIGHT TO RESUBMIT TO THE AUTHORITY ANY
 NEGOTIABILITY DISPUTE WHICH REMAINS CONCERNING THE UNION'S PROPOSALS,
 AFTER RESORTING TO THE PROCEDURES DISCUSSED ABOVE.
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 12, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
 AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
 PARTIES LISTED:
 
    MR. PHILLIP R. KETE
 
    LABOR RELATIONS CONSULTANT
 
    GAFFREY, ANSPACH, SCHEMBER, KLIMASKI, AND MARKS, P.C.
 
    1712 N STREET, N.W.
 
    WASHINGTON, D.C.  20036
 
    MR. THOMAS UBOIS
 
    ASSISTANT DIRECTOR FOR ADMINISTRATION
 
    NATIONAL SCIENCE FOUNDATION
 
    WASHINGTON, D.C.  20550
 
    HONORABLE RICHARD C. ATKINSON
 
    DIRECTOR
 
    NATIONAL SCIENCE FOUNDATION
 
    WASHINGTON, D.C.  20550