09:1037(146)NG - NFFE Local l363 and Army, HQ, Army Garrison, Yongsan, Korea -- 1982 FLRAdec NG

 9 FLRA No. 146
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1363
 Union
 
 and
 
 DEPARTMENT OF THE ARMY, HQ, U.S. ARMY
 GARRISON, YONGSAN, KOREA
 Agency
 
                                            Case No. O-NG-400
 
                DECISION AND ORDER ON NEGOTIABILITY APPEAL
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE 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.  /1/
 
    THE RECORD IN THIS CASE INDICATES THAT THE UNION SOUGHT TO NEGOTIATE
 TWO PROPOSALS REGARDING AN AGENCY PROPOSED REGULATION REPLACING AN
 EARLIER AGENCY REGULATION CONCERNING U.S. MILITARY POLICE HIGHWAY PATROL
 OPERATIONS IN KOREA.  SUBSEQUENT TO THE FILING OF THE UNION'S APPEAL THE
 AGENCY ADVISED THE AUTHORITY THAT THE DRAFT REGULATION HAD BEEN
 WITHDRAWN AND THAT THE AGENCY WOULD CONDUCT ITS MILITARY POLICE HIGHWAY
 PATROL OPERATIONS UNDER THE EARLIER REGULATION WHICH HAD BEEN
 PROMULGATED IN 1976.  THE AGENCY CONTENDS, IN THIS REGARD, THAT SINCE
 THE UNION'S PROPOSALS ARE KEYED TO THE NOW WITHDRAWN DRAFT REGULATION
 THE UNION'S APPEAL SHOULD BE DISMISSED AS BEING MOOT.  THE UNION,
 HOWEVER, ARGUES THAT WHILE THE DRAFT REGULATION HAS BEEN DESCRIBED IN
 THE DRAFT REGULATION AND THAT UNLESS THE AGENCY ALSO WITHDRAWS THESE
 PROCEDURES THE UNION'S PROPOSALS, WHICH CONCERN SUCH PROCEDURES, ARE NOT
 MOOT.
 
    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.  THE ESSENCE OF THE DISPUTE BETWEEN THE PARTIES IN
 THIS CASE CONCERNS THE QUESTION OF THE AGENCY'S OBLIGATION TO BARGAIN,
 I.E., WHETHER LOCAL PAST PRACTICES OR CONDITIONS OF EMPLOYMENT HAVE BEEN
 CHANGED, AND NOT THE NEGOTIABILITY OF THE PARTICULAR PROPOSALS INVOLVED.
  RESOLUTION OF THE INSTANT DISPUTE MAY BE DEPENDENT UPON THE RESOLUTION
 OF FACTUAL ISSUES WHICH SHOULD BE ACCOMPLISHED THROUGH THE USE OF
 INVESTIGATORY AND FORMAL HEARING PROCEDURES.  ACCORDINGLY, THE PROPER
 FORUM IN WHICH TO RESOLVE THIS DISPUTE IS NOT A NEGOTIABILITY APPEAL,
 BUT, RATHER, A TIMELY COMMENCED 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.
 
    ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS, 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
 PROPOSALS, AFTER RESORTING TO THE UNFAIR LABOR PRACTICE PROCEDURES
 DISCUSSED ABOVE.
 
    ISSUED, WASHINGTON, D.C., AUGUST 20, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ NEITHER THE AGENCY'S STATEMENT OF POSITION, WHICH WAS NOT TIMELY
 FILED PURSUANT TO SECTION 2424.6 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOR THE AGENCY'S "CONTINUATION" OF ITS STATEMENT OF
 POSITION, WHICH DOES NOT MEET THE REQUIREMENTS FOR FILING ADDITIONAL
 SUBMISSIONS TO THE AUTHORITY UNDER SECTION 2424.8 OF THE AUTHORITY'S
 RULES AND REGULATIONS, WAS CONSIDERED BY THE AUTHORITY IN THIS CASE.
 
    /2/ IT IS NOTED THAT THE UNION DID FILE A RELATED UNFAIR LABOR
 PRACTICE CHARGE CONCERNING THE ISSUE OF THE AGENCY'S OBLIGATION TO
 BARGAIN ON THE PROPOSALS.  THE UNION, HOWEVER, WITHDREW THIS CHARGE.