American Federation of Government Employees, Local 32, AFL-CIO (Union) and U.S. Office of Personnel Management (Agency)

 8 FLRA No. 90
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 32
 Union
 
 and
 
 U.S. OFFICE OF PERSONNEL MANAGEMENT
 Agency
 
                                            Case No. O-NG-395
 
                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).
 UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES'
 CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
 
    THE RECORD INDICATES THAT DURING THE TERM OF THE PARTIES' AGREEMENT
 THE UNION SOUGHT TO NEGOTIATE FOUR PROPOSALS AS A CONSEQUENCE OF A
 TRANSFER OF FUNCTION OF THE AGENCY'S "VALIDATION FUNCTION:" (1)
 ESTABLISHING TRAINING AGREEMENTS AND "BRIDGE POSITIONS," (2) CONCERNING
 DEVELOPMENT OF PERFORMANCE STANDARDS "IN ACCORDANCE WITH 3 FLRA 120,"
 (3) REQUIRING ON-THE-JOB TRAINING IN CONNECTION WITH TRAINING
 AGREEMENTS, AND (4) GRANTING AWARDS OR RECOGNITION TO SPECIFIED
 EMPLOYEES.  THE CIRCUMSTANCES HEREIN DO NOT GIVE RISE TO A NEGOTIABILITY
 DISPUTE WITH RESPECT TO ANY OF THE PROPOSALS WHICH THE AUTHORITY MAY
 PROPERLY REVIEW AT THIS TIME PURSUANT TO SECTION 7117 OF THE STATUTE.
 
    AS TO PROPOSALS (1), (3) AND (4), THE AGENCY CLAIMS THEY ARE NOT
 WITHIN THE SCOPE OF BARGAINING CREATED BY THE TRANSFER OF FUNCTION.
 THUS, IT APPEARS THAT THE ESSENCE OF THE DISPUTE BETWEEN THE PARTIES
 CONCERNS THE QUESTION OF THE AGENCY'S OBLIGATION TO BARGAIN AND NOT THE
 NEGOTIABILITY OF THE THREE PROPOSALS THEMSELVES.  IT IS 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.  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.
 BECAUSE THE RESOLUTION OF THE DISPUTE CONCERNING THE THREE PROPOSALS
 MENTIONED ABOVE MAY DEPEND UPON FACTUAL ISSUES RELATING TO THE PARTIES'
 CONDUCT, SUCH QUESTIONS OF FACT SHOULD BE DETERMINED BY MEANS OF THE
 INVESTIGATORY AND FORMAL HEARING PROCEDURES ESTABLISHED BY THE STATUTE
 AND THE AUTHORITY'S RULES AND REGULATIONS.
 
    AS TO (2), THE AGENCY STATED ITS INTENTION TO DEVELOP PERFORMANCE
 STANDARDS "IN FULL COMPLIANCE WITH OUR RESPONSIBILITIES TO CONDUCT
 APPROPRIATE NEGOTIATIONS WITH RESPECT TO THE PROCEDURES USED TO DEVELOP
 THE STANDARDS AND THEIR IMPACT ON WORKING CONDITIONS." THUS IT DOES NOT
 APPEAR THAT THE AGENCY HAS DECLARED THE PROPOSAL NONNEGOTIABLE.  THE
 CIRCUMSTANCES ARE NOT MATERIALLY DIFFERENT FROM THOSE PRESENTED IN
 ASSOCIATION OF CIVILIAN TECHNICIANS AND STATE OF GEORGIA, DEPARTMENT OF
 DEFENSE, MILITARY DIVISION, ATLANTA, GEORGIA, 3 FLRA 686 (1980), IN
 WHICH THE AGENCY STATED IT HAD NEVER ALLEGED THAT THE PROPOSAL IN
 QUESTION WAS NONNEGOTIABLE.  CONSEQUENTLY, THE AUTHORITY CONCLUDED THE
 UNION'S PETITION WAS MOOT AND DISMISSED THE APPEAL.  THE SAME CONCLUSION
 IS REACHED HEREIN WITH RESPECT TO PROPOSAL (2).
 
    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
 PETITION FOR REVIEW BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., APRIL 30, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY