American Federation of Government Employees, Local 2782, AFL-CIO (Union) and Department of Commerce, Bureau of the Census, Washington, D.C. (Agency)

 4 FLRA No. 93
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 2782
 Union
 
 and
 
 DEPARTMENT OF COMMERCE,
 BUREAU OF THE CENSUS,
 WASHINGTON, D.C.
 Agency
 
                                            Case No. 0-NG-184
 
                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.).
 
    THE RECORD IN THIS CASE DISCLOSES THAT THE UNION AND THE AGENCY ARE
 PARTIES TO A THREE YEAR AGREEMENT NEGOTIATED IN MID-1977 WITH A RIGHT TO
 REOPEN THE AGREEMENT ANNUALLY TO NEGOTIATE UP TO FIVE SECTIONS OF THE
 AGREEMENT AT THE REQUEST OF EITHER PARTY.  IN ADDITION TO THE FIVE
 SECTIONS THAT COULD BE RENEGOTIATED PURSUANT TO THE PARTIES' AGREEMENT,
 THE UNION PROPOSED TO BARGAIN OVER FIFTY-FOUR ADDITIONAL SECTIONS.  THE
 AGENCY REFUSED TO BARGAIN OVER THE ADDITIONAL FIFTY-FOUR SECTIONS,
 TAKING THE FOLLOWING POSITION BEFORE THE AUTHORITY:
 
    IN SUMMARY, IT IS THE BUREAU'S POSITION THAT ITS ALLEGATION WITH
 RESPECT TO ITS OBLIGATION
 
    OR LACK THEREOF TO BARGAIN ON UNION PROPOSALS 19 THROUGH 23 IS NOT
 PROPERLY BEFORE THE
 
    AUTHORITY AT THIS TIME.  THE PARTIES AGREEMENT PROVIDES NO BASIS FOR
 NEGOTIATING THE PROPOSALS
 
    AT ISSUE, NOR ARE SUCH NEGOTIATIONS REQUIRED AT THIS TIME, AND AT THE
 UNION'S INITIATIVE, BY 5
 
    U.S.C. 7117.  IN OUR OPINION, THE UNION'S DISAGREEMENT WITH THIS
 POSITION WOULD MORE
 
    APPROPRIATELY BE PURSUED IN SOME FORUM OTHER THAN THAT ESTABLISHED BY
 PART 2424.
 
    AT SUCH FUTURE TIME AS THE BUREAU IN FACT ALLEGES THAT ARTICLES 19
 THROUGH 23, OR PARTS
 
    THEREOF, ARE INCONSISTENT WITH LAW, RULE, OR REGULATION, THE UNION
 MAY, OF COURSE, AVAIL
 
    ITSELF OF PART 2424 PROCEDURES.  FOR THE PRESENT, HOWEVER, WE CONTEND
 ONLY THAT THE BUREAU IS
 
    NOT REQUIRED BY TITLE VII TO BARGAIN UNION INITIATED CHANGES TO
 CONDITIONS OF EMPLOYMENT
 
    DURING THE TERM OF ITS AGREEMENT WITH AFGE LOCAL 2782.
 
    THE UNION STATES THAT "(T)HIS CASE INVOLVES THE AGENCY'S REFUSAL TO
 BARGAIN OVER FIFTY-FOUR PROVISIONS PROPOSED BY THE UNION TO MODIFY
 EXISTING WORKING CONDITIONS." ADDITIONALLY, TEE UNION CONTENDS THAT
 "THERE IS NO STATUTORY PROVISION LIMITING THE RIGHT TO BARGAIN DURING
 THE TERM OF A CONTRACT" AND IT "DID NOT WAIVE ITS RIGHT TO INITIATE
 CHANGES IN WORKING CONDITIONS DURING THE LIFE OF THE AGREEMENT."
 
    THUS, BASED ON THE RECORD IN THE CASE, IT IS CLEAR THAT THE ESSENCE
 OF THE CONTENTIONS OF THE PARTIES RELATES TO WHETHER THE UNION CAN
 INITIATE BARGAINING ON CERTAIN MATTERS DURING THE TERM OF THE COLLECTIVE
 BARGAINING AGREEMENT IT ENTERED INTO WITH THE AGENCY IN THE ABSENCE OF A
 CHANGE IN PERSONNEL POLICIES, PRACTICES AND MATTERS AFFECTING WORKING
 CONDITIONS.  THE FUNDAMENTAL ISSUE IN THIS CASE, THEREFORE, IS WHETHER
 THE AGENCY IS OBLIGATED TO BARGAIN AT THIS TIME ON THE MATTERS RAISED BY
 THE UNION.  THUS, THE SUBSTANCE OF THE PARTIES' CONTENTIONS CONCERNS
 UNFAIR LABOR PRACTICE ISSUES APPROPRIATE FOR RESOLUTION UNDER PROCEDURES
 SET FORTH UNDER SECTION 1118 OF THE STATUTE.  THIS ISSUE DOES NOT FOCUS
 ON MATTERS 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.  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 BE BEST 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 (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 UNION'S RIGHT TO RESUBMIT TO THE AUTHORITY ANY
 NEGOTIABILITY ISSUES WHICH REMAIN UNRESOLVED IF AN OBLIGATION TO BARGAIN
 IS FOUND TO EXIST IN THE UNFAIR LABOR PRACTICE PROCEEDING REFERRED TO
 ABOVE.  /1/
 
    ISSUED, WASHINGTON, D.C., DECEMBER 3, 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
 
    GAFFNEY, ANSPACH, SCHEMBER, KLIMASKI & MARKS, P.C.
 
    1712 N STREET, N.W.
 
    WASHINGTON, D.C.  20036
 
    MR. GEORGE J. SABO
 
    LABOR RELATIONS SPECIALIST
 
    PERSONNEL DIVISION
 
    BUREAU OF THE CENSUS
 
    DEPARTMENT OF COMMERCE
 
    WASHINGTON, D.C.  20233
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ IN ACCORDANCE WITH SECTION 2424.8 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.8), THE AUTHORITY DID NOT CONSIDER THE AGENCY'S
 SUPPLEMENT DATED JANUARY 3, 1980, TO ITS STATEMENT OF POSITION.