09:0683(79)NG - NASA HQ Professional Association, IFPTE Local 9 and NASA HQ -- 1982 FLRAdec NG

 9 FLRA No. 79
 
 NATIONAL AERONAUTICS AND SPACE
 ADMINISTRATION HEADQUARTERS
 PROFESSIONAL ASSOCIATION,
 IFPTE LOCAL 9
 Union
 
 and
 
 NATIONAL AERONAUTICS AND SPACE
 ADMINISTRATION HEADQUARTERS
 Agency
 
                                            Case No. O-NG-393
 
                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.
 
    DURING CONTRACT NEGOTIATIONS THE PARTIES WERE UNABLE TO REACH
 AGREEMENT ON A PROPOSAL CONCERNING "CLASSIFICATION PROCEDURE." HOWEVER,
 THEY DID AGREE TO A MEDIATOR'S RECOMMENDATION THAT THE PROPOSAL BE
 REFERRED TO A SELECT COMMITTEE COMPRISE OF THE AGENCY'S PERSONNEL
 DIRECTOR AND THE UNION'S PRESIDENT WHICH WOULD DEVELOP A PROPOSAL
 ACCEPTABLE TO BOTH SIDES.  THE SELECT COMMITTEE SUBMITTED A REVISED
 PROPOSAL WHICH WAS ACCEPTED BY THE AGENCY BUT REJECTED BY THE UNION'S
 CHIEF NEGOTIATOR.  NEGOTIATIONS WERE THEN RESUMED WITH THE UNION
 SUBMITTING FURTHER PROPOSALS ON CLASSIFICATION PROCEDURES AND THE AGENCY
 RESPONDING TO THEM.  ULTIMATELY THE AGENCY ADVISED THE UNION BY LETTER
 "THAT WHAT IT HAS GIVEN IS MORE THAN ENOUGH . . . . " THE AGENCY FURTHER
 ASSERTED, "MANAGEMENT'S FINAL POSITION IS TO ACCEPT THE RECOMMENDED
 ARTICLE OF JUNE 5, 1980 AGREED UPON BY (THE SELECT COMMITTEE) IN ITS
 ENTIRETY, AND, IN SO DOING, HAS PROVIDED AMPLE JUSTIFICATION FOR
 REJECTING THE UNION'S NEW PROPOSAL . . . THEREBY CONCLUDING NEGOTIATIONS
 ON ARTICLE 24-- CLASSIFICATION SURVEY PROCEDURES." IN THIS CONNECTION,
 THE AGENCY'S RESPONSE TO THE UNION'S PETITION FOR REVIEW BEFORE THE
 AUTHORITY STATED, "(N)EGOTIATIONS ON THE ENTIRE MATTER WERE CONCLUDED BY
 THE AGENCY ON THE BASIS THAT THE ACTIVITY HAD NO OBLIGATION TO BARGAIN
 ANY FURTHER" AFTER THE ABOVE REFERENCED NOTIFICATION TO THE UNION OF ITS
 FINAL POSITION.
 
    THE CIRCUMSTANCES HEREIN DO NOT GIVE RISE TO A NEGOTIABILITY DISPUTE
 WITH RESPECT TO THE PROPOSAL WHICH THE AUTHORITY MAY PROPERLY REVIEW AT
 THIS TIME PURSUANT TO SECTION 7117 OF THE STATUTE, SINCE IT APPEARS THAT
 THE AGENCY'S PRINCIPAL POSITION IS THAT IT HAS MET ITS OBLIGATION TO
 BARGAIN ON THE SUBJECT MATTER OF THE UNION PROPOSAL AND THEREFORE IS NOT
 UNDER A DUTY TO NEGOTIATE ON THE SPECIFIC PROPOSAL.  IT IS WELL
 ESTABLISHED THAT THE PROPER FORUM FOR RESOLUTION OF 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 RESOLUTION OF THE DISPUTE CONCERNING THE PROPOSAL MAY
 DEPEND UPON FACTS 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.
 
    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., JULY 28, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY