National Federation of Federal Employees, Local 1454 (Union) and Veterans Administration, Regional Office, Houston, Texas (Agency)

 8 FLRA No. 16
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL
 1454
 Union
 
 and
 
 VETERANS ADMINISTRATION,
 REGIONAL OFFICE, HOUSTON,
 TEXAS
 Agency
 
                                            Case No. 0-NG-449
 
                DECISION AND ORDER ON NEGOTIABILITY APPEAL
 
    THE PETITION FOR REVIEW IN 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).
 THE FOLLOWING DETERMINATIONS ARE MADE UPON CAREFUL CONSIDERATION OF THE
 RECORD IN THIS CASE.  /1/
 
    DURING THE TERM OF THE PARTIES' NEGOTIATED AGREEMENT, THE AGENCY
 NOTIFIED THE UNION OF ITS INTENT TO IMPLEMENT AN AGENCY-WIDE POLICY
 AUTHORIZING TELEPHONE MONITORING FOR PURPOSES OF SERVICE EVALUATION.
 THE UNION THEREAFTER REQUESTED "IMPACT BARGAINING" AND SUBMITTED SEVERAL
 PROPOSALS.  SUBSEQUENTLY, THE UNION SUBMITTED THE PROPOSAL WHICH IS THE
 SUBJECT OF THIS APPEAL.  THAT PROPOSAL WOULD REQUIRE THE AGENCY, AMONG
 OTHER MATTERS, TO ASSIGN THREE EMPLOYEES TO EACH FOUR INCOMING LINES, TO
 PLACE BLUE COLORED DRAPES ON ALL WALLS AND TO REARRANGE EXISTING
 ANSWERING STATIONS IN ORDER TO REDUCE NOISE LEVELS.  THE AGENCY
 CONTENDED THAT THERE WAS NO DUTY TO BARGAIN ON THE PROPOSAL BECAUSE IT
 CONCERNED MATTERS WHICH WERE OUTSIDE THE SCOPE OF THE PARTIES'
 MID-CONTRACT NEGOTIATIONS REGARDING THE "IMPACT AND IMPLEMENTATION" OF
 THE AGENCY'S POLICY ON TELEPHONE MONITORING.  THE UNION THEN APPEALED TO
 THE AUTHORITY.
 
    THE UNION CONTENDS ITS PROPOSAL CONCERNS THE CHANGE IN WORKING
 CONDITIONS WHICH WOULD RESULT FROM THE AGENCY'S IMPLEMENTING ITS POLICY
 ON TELEPHONE MONITORING.  IT ESSENTIALLY STATES THAT, SINCE EMPLOYEE
 PERFORMANCE WILL BE MONITORED, THE PROPOSAL CONCERNING THE WORK
 AREA/ENVIRONMENT, WHICH MATTERS AFFECT EMPLOYEE PERFORMANCE, RELATES THE
 IMPACT AND IMPLEMENTATION OF THE AGENCY'S POLICY OF EVALUATING EMPLOYEES
 ON THEIR TELEPHONE PERFORMANCE.
 
    THE CIRCUMSTANCES HEREIN DO NOT GIVE RISE TO A NEGOTIABILITY DISPUTE
 WHICH THE AUTHORITY MAY PROPERLY REVIEW AT THIS TIME PURSUANT TO SECTION
 7117 OF THE STATUTE.  IT IS CLEAR THAT THE ONLY DISPUTE BETWEEN THE
 PARTIES CONCERNS THE QUESTION OF THE AGENCY'S OBLIGATION TO BARGAIN AND
 NOT THE NEGOTIABILITY OF THE PARTICULAR PROPOSAL INVOLVED.  IT IS NOW
 WELL ESTABLISHED THAT THE PROPER FORUM IN WHICH TO RESOLVE SUCH A
 QUESTION IS NOT A NEGOTIABILITY CASE, BUT, RATHER, AN UNFAIR LABOR
 PRACTICE PROCEEDING PURSUANT TO SECTION 7118 OF THE STATUTE AND PART
 2423 OF THE AUTHORITY'S RULES AND REGULATIONS.  /2/ SEE, E.G., AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF
 PERSONNEL MANAGEMENT, WASHINGTON, D.C., 6 FLRA NO. 15(1981), AND CASES
 CITED THEREIN.  IN THAT REGARD, RESOLUTION OF THE INSTANT DISPUTE MAY BE
 DEPENDENT UPON THE RESOLUTION OF FACTUAL ISSUES WHICH SHOULD BE
 ACCOMPLISHED THROUGH USE OF INVESTIGATORY AND FORMAL HEARING PROCEDURES
 ESTABLISHED UNDER THE STATUTE AND THE AUTHORITY'S RULES AND REGULATIONS.
 
    ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE UNION'S APPEAL
 BE, AND IT HEREBY IS, DISMISSED WITHOUT PREJUDICE TO THE UNION'S RIGHT
 TO RESUBMIT TO THE AUTHORITY ANY NEGOTIABILITY DISPUTE WHICH REMAINS
 CONCERNING THE UNION'S PROPOSAL, AFTER RESORTING TO THE PROCEDURES
 DISCUSSED ABOVE.
 
    FOR THE AUTHORITY.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 10, 1982
 
                   JAMES J. SHEPARD, EXECUTIVE DIRECTOR
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE UNION ASSERTS THAT THE AGENCY'S STATEMENT OF POSITION WAS
 UNTIMELY FILED WITH THE AUTHORITY AND REQUESTS THAT IT NOT BE
 CONSIDERED.  INSOFAR AS APPEARS FROM THE RECORD, THE AGENCY RECEIVED A
 COPY OF THE UNION'S COMPLETED PETITION ON JULY 6, 1981 AND THE AGENCY'S
 STATEMENT WAS NOT FILED WITH THE AUTHORITY UNTIL AUGUST 6, 1981.  THUS,
 THE AGENCY'S STATEMENT WAS NOT FILED WITHIN THE TIME LIMITS SET FORTH IN
 SECTION 2424.6 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
 2424.6(1981)).  THEREFORE, THE UNION'S REQUEST IS GRANTED.
 
    /2/ IT IS NOTED THAT THE UNION HAS ALSO FILED A RELATED UNFAIR LABOR
 PRACTICE CHARGE CONCERNING THE ISSUE OF THE AGENCY'S OBLIGATION TO
 BARGAIN ON THE PROPOSAL.  HOWEVER, PURSUANT TO SECTION 2424.5 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.5(1981)), THE UNION
 REQUESTED THAT THE AUTHORITY PROCEED WITH THE NEGOTIABILITY APPEAL
 FIRST.